The DVD-R arrived this afternoon, containing all 1721 pages of Bob Gard’s “ON GARD, OBAMA, YOU ARE AN UNCONSTITUTIONAL PRESIDENT BECAUSE YOU ARE NOT A NATURAL-BORN CITIZEN, WHICH I SHALL PROVE BEYOND A REASONABLE DOUBT.” The original mention of Bob’s book here drew 815 comments before I closed comments, one of the largest for an article on the site. I usually shut comments down before that many accumulate. (This one had the most.)
A discussion with lots of people making lots of comments and going off in many directions is hard to follow, so I have created a controlled-comment article (this one) so that Bob and I can talk about his book, one-on-one. I’m calling it a “debate,” but it not a debate in any formal sense.
Here’s the “debate” framework:
- After I have had time to become more familiar with Bob’s book, I will update this article with some observations of a general nature to give folks a picture of what I’m looking at (from my perspective).
- I will then offer some sort of a challenge to Bob in a comment regarding something in the book (at which time the “debate” will start).
- Bob may reply in an email to me (I’ve sent him an email before, so he has my address) and I will copy the text of his email to a comment posted under his name. The exchange here should look like he’s just leaving comments, although it will be less immediate because of the email delay.
- I will either reply to Bob’s comment (and we go back and forth) or I will offer a new challenge. What I would like to attempt to do is to arrive at some consensus, or an “agree to disagree” before moving on to the next challenge.
- And this process will continue so long as there are comments from the participants.
- I agree to publish all of Bob’s emailed comments in their entirety and as promptly as practical, so long as they meet the site’s editorial policy, and I don’t anticipate any issues with that.
- This is not a debate to figure one who is the better debater, but to examine particular arguments related to presidential eligibility and the constitutional meaning of the phrase “natural born citizen.”
Bob Gard has agreed to this procedure, writing to me in email:
I find all the guidelines you set down fair. You can post the fact that I am surprised but grateful to you for the opportunity.
While comments are closed on this article, general commenters are welcome to leave comments at the companion article, “The Great Debate – kibitzer’s edition,” “Part 2,” “Part 3,” and “Part 4.” Commenters are welcome to offer suggestions to either side in the debate. I certainly intend to use material left here by other commenters over the years on my side.
By the way, the second thing I did after I got the book, a 175 MB Microsoft Word Document, was to convert it to PDF. Microsoft Word took a minute to open it and then several minutes more to stabilize enough to page through the book. Adobe Acrobat reader opens the PDF version in less than a second. That’s all I’m going to say about the technical aspects of the book’s production.
Because we’ll be using a strict alternation in comments, it will turn out that all of my comments will have a blue background and Bob’s will have a white background. This may help the reader keep things straight.
I would like to begin the debate with a question? Prior to the adoption of the United States Constitution, the phrase “natural born subject” frequently appeared in colonial and state legislation.
Was the meaning of that phrase taken from English Common Law, or from some other source, and if so, what?
The term itself was taken from Calvin’s Case, which means it was taken from British law. I reproduced much of the actual report from Lord Coke. An excerpt from my eBook follows:
OK. At this point I think we have consensus that the term “natural born subject” is understood as a term of English law prior to 1789.
Because of the time period that I used in my opening question, "prior to the adoption of the United States Constitution," I thought there might be some push back from Bob regarding the period 1776-1789, but since there wasn’t, we can move on.
Next, I would like to look at two particular examples of the usage of "natural born subject" in legislation. The first is the British Nationality Act of 1730, which says:
The other is the Colonial Charter of Georgia from 1732:
So at least in Georgia and in England those born in the place, and their children born elsewhere, are natural born subjects. In these instances, “subject from birth” is consistent with the meaning of “natural born subject.” And I would also add that the most comprehensive dictionary of historical word usage in the English language, the Oxford English Dictionary, also confirms this understanding (and no other), giving as the sole definition of “natural born”:
Having looked at these pre-Revolutionary War examples, I would like to move on to other state legislation; some of these are acts of state/colonial legislatures that conveyed citizenship on an alien. I will give one citation following to show the general form of the language in the the naturalization acts, and then to present a table which shows by date the specific language used. This one is from the naturalization a list of persons in New York on January 27, 1770:
List:
In 1795, the Chief Justice of the Connecticut Court wrote in his book, A system of the laws of the State of Connecticut, again using the terminology “natural born subject”:
Indeed in 1797, the legislature of Massachusetts proposed an amendment to the US Constitution using “natural born subject” and “natural born citizen” in the same document:
Finally, I would like to make mention of a remark by Mr. Burke in the debate in the First Congress over the Naturalization Act of 1790, which made the children of US Citizen fathers born overseas “natural born citizens.” Mr. Burke makes some equivalence between what was being debated in the House and the legislation of England:
See also Ballantine’s extensive list of references of Citizen vis-a-vis Subject, inserted herein by reference.
So how are we to explain the fluid substitution of citizen and subject in these examples (which are all the ones I had at hand)? We might look to a decision from the Massachusetts Supreme Court, Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813), which says:
Bob’s thesis is that the term “natural born citizen” was developed by John Jay and its meaning (definition) was communicated to the Federal Convention of 1787 in some manner not recorded in history, nor in the records of the Convention’s debates. However, the Federal Convention only wrote the US Constitution, they didn’t adopt it. The meaning of the Constitution should the meaning that the state ratifying conventions voted for. We see that at least among some state legislatures, natural born subject (which in English law included both those born in the country, and their children born outside the country) and natural born citizen were used interchangeably. It would appear that the singular definition that Bob attributes to “natural born citizen” neither appeared in the writings of John Jay, nor somehow made it to some of the people who ratified the Constitution.
How can the ratifiers of the Constitution have known of this novel definition if it was nowhere recorded in history and and if they knew of a distinction, then why did they continue to use the English term in the same context as the American term for years afterwards?
It would seem to me that the straightforward answer is that this “secret meaning” of natural born citizen never existed, or if it did, knowledge of it was not widely known by the people who ratified the Constitution.
Response to Dr. Conspiracy’s second question in The Great Debate:
I don’t know whether any of you have been following my contention that Chief Justice John Roberts used a kind of British act to explain that Obamacare’s fee was actually a tax. Roberts’ opinion was nothing more than an American version of a British explanatory not allowed by our Constitution. The nationality act cited by Dr. Conspiracy stated: “An Act to explain a Clause in an Act made in the seventh Year of the Reign of her late Majesty Queen Anne, For naturalizing Foreign Protestants, which relates to the Children of the natural-born Subjects of the Crown of England, or of Great Britain.” Thank you for corroborative proof of my statements.
The Doctor wrote:
…the Children of all natural-born Subjects, born out of the Ligeance of her said late Majesty, her Heirs and Successors, should be deemed, adjudged and taken to be natural-born Subjects of this Kingdom to all Intents, Constructions and Purposes whatsoever…
I referred to this 4 Geo. 2 in an entry of one dictionary in one of my dictionary tables, D40, which is Giles Jacob’s 1772 New Law Dictionary. “ And all children born out of the ligeance of the crown, whoſe fathers were, or ſhall be natural ſubjeƈts of Great Britain, at the time of their birth, are adjudged to be natural-born ſubjeƈts of this kingdom, except children of parents of attainted of treaſon, or in the aƈtual ſervice of foreign princes in enmity with England. &c. by the 4 Geo. 2. c. 21. All foreigners who ſhall live ſeven years or more, in any of our American plantations, and not be abſent therefrom above two months at one time ſhall on taking the oaths be deemed natural ſubjeƈts, as if they had been born here, but not capable of enjoying any place of truſt, &c.” “Attainted of treason?” Where do you find that in American natural-born citizen, which corresponds to its inclusion in natural-born subject?
I also covered British law close to it in my eBook. “Probably the most thorough discussion in Congress about the meaning of natural-born citizen occurred on June 14, 1967. The discussion ran from page 15875 to page 15880 in the Congressional Record of the House. The debate had arisen about the possible ineligibility of a prospective presidential candidate, George Romney, father of Mitt Romney, who might run as a candidate in the 1968 presidential campaign. “Mr. George Romney, present Governor of the State of Michigan, has been frequently mentioned in recent news media as a prospective candidate for the Office of President of the United States in 1968. According to ‘Who’s Who’ he was born in Chihuahua, Mexico, on July 8, 1907. [That’s a new form of reliable birth certificate. Congress hasn’t progressed much.] A question exists whether he would be eligible to be inaugurated, if he should be elected to the Presidency because of a specific requirement of the Constitution of the United States that the President be ‘a natural born citizen.’ The answer to this question should be found in advance of the party nominating conventions, not only in respect to his ability to serve if elected, but also because of the effect that the existence of such question.” [That part Congress got right.]
. . .
“The House Record attributed the mistake by the 1790 U.S. Congress in using the term “natural born citizen” instead of “citizen” for the children born beyond sea to several mix-ups concerning English precedent. “Manifestly, Mr. Burke had given the wrong reference to the Act of Parliament of the 12th year of William III which was an inheritance law. But, it was a naturalization bill and the reference to the English acts shows the origin of the inadvertent error in using the term natural-born citizen instead of plain ‘citizen’ came from copying the English Naturalization Act. . . . it is found that this act used the term ‘natural-born’ through inadvertence which resulted from the use of the English Naturalization Act (13 Geo. III, Cap 21 (1773)) as a pattern when it was deemed necessary (as stated by Van Dyne) to enact a similar law in the United States to extend citizenship to foreign-born children of American parents.”
I don’t buy that explanation. It smacks of the twentieth century obsession with British heritage and a belief that we don’t have a strongly original American heritage. I believe I have better reasons, both for legislating a replacement act and for striking “natural born citizen” in favor of “citizen.” I believe the need to replace the 1790 act with the 1795 act was due to an outraged American public that thought the first act was far too lenient. This will be demonstrated with clear and convincing proof from the Madison papers. I will propose another reason for the striking of “natural born citizen” that has nothing to do with whatever confusion was engendered by a British naturalization act that had used the term “natural-born subject.”
But first I wish to quote again the House Record to show how the House was ready to point out a connection with Madison in the whole affair. “Mr. James Madison, who had been a member of the Constitutional Convention and had participated in the drafting of the terms of eligibility for the President, was a member of the Committee of the House, together with Samuel Dexter of Massachusetts and Thomas A. Carnes of Georgia when the matter of the uniform naturalization act was considered in 1795. Here the false inference which such language might suggest with regard to the President was noted, and the Committee sponsored a new naturalization bill which deleted the term ‘natural-born’ from the Act of 1795. (1 Stat 414) The same error was never repeated in any subsequent naturalization act.” This makes still another convolution since in one paragraph the placement of “natural born citizen” is a mere mistake drawn from a British naturalization act and in the next paragraph it is announced that the placement could cause a “false inference” with regard to the meaning of the term in relation to the presidential eligibility clause. What false inference—the one that might be incurred if, indeed, natural born citizen had nothing to do with natural born subject? If you analyze the situation carefully, you can deduce that Madison wanted very much the term deleted from the 1795 bill. That seemed more important to him than the leniency of the 1790 act.
Later the House seemed to endorse this viewpoint when discussing three university law journals: “Three articles have appeared in Journals on the same general subject as this article. The first was in the Albany, New York Bar Journal (66 Albany Law Journal 99) in 1904, both of which concluded that a foreign-born child of American parentage came within the term natural-born and was eligible to become President. The second in 1950 was 35 Cornell Law Quarterly 357. The first was so inadequately considered and lacking in citation as not to deserve mention. The only reference was to the inadvertent use of the term “natural born” in the Act of 1790 (1 Stat. 103). He did not seem to know that it was Mr. Madison who had participated in the drafting of the Constitution who had discovered the error and authorized the bill to correct it by deleting the term from the act of 1795 (1 Stat. 445).”
“Doesn’t that call out to you? If the term came from natural-born subject, the British equivalent to native-born citizen, which was equal to natural-born citizen, why was deleting it so important to Madison, the so-called Father of the Constitution, who knew what the term really meant? The first reason suggested by the record contradicted the second reason. Worse yet, the record explained it in contradiction to the belief that natural born Citizen was derived from natural born subject. The most important thing to concentrate on was Madison’s eagerness to get rid of the term “natural born citizen” from the Act of 1790 when almost all the other Congressmen thought that the main concern was toughening the act.”
I did not refer to the Colonial Charter of Georgia although I did discuss the kind of citizenship Georgia and other states envisioned. Here are a few excerpts:
Vermont’s constitutional convention copied Pennsylvania’s clause. North Carolina at least used what had become an American term—citizen. She granted property rights to “every Foreigner” who settled there if he opted to swear allegiance and fulfill the provision of one year’s residency. He would then be “deemed a free citizen.” By inserting a term not used in Great Britain, North Carolina had chosen to be “American.”
New York’s constitutional convention chose a position closer to North Carolina’s with the exception of the residency proviso. The naturalization power was placed in the legislature, a long-standing precedent in Great Britain and America, so long as the representatives required the applicant to settle in the state and “to abjure and renounce all allegiance and subjection to all and every foreign king, prince, potentate and state, in all matters ecclesiastical as well as civil.”[Where is the principle of perpetual allegiance?]
Maryland, Virginia, South Carolina, and Georgia all copied North Carolina’s vestment of the power to naturalize in their legislatures. Maryland’s act of July 1779 required the applicant to declare his “belief in the christian religion” and swear an oath of allegiance before the governor and council, the General Court, or any general or county court, whereupon the foreigner was awarded the status of “natural born subject of this state.” Are you confused yet? A further residence of seven years was required before the naturalized natural born subject could become eligible for any state office or for Congress.[1] It should be obvious that “residency” had become a uniquely American stipulation. In Great Britain, when a foreigner was naturalized, he immediately enjoyed all the benefits of natural born subjects, save at limited times the right to run for office, but never based on a quota of a fixed number of years as a resident, save for a limited number of instances.
Aside from residency, Virginia had one of the most restrictive stipulations included in its 1762 statute that denied suffrage to women, minors, non-Protestants, free blacks, mulattos, Indians, and Catholics. By relying on such restrictive legislation, most historians like Bernard Bailyn trying to explain the revolutionary era concluded that Americans, who remained lulled under their former teachings of the Anglican Church, believed themselves special, inheritors of a uniquely English evolutionary road leading to liberty and tolerance, that was never addressed in the laws of nature and nations. Rogers Smith agreed:
Most religious-minded Americans thought, as Milton and Harrington had suggested, that being English meant sharing in the divine mission of Anglo-Saxon peoples to bring about some sort of Protestant millennium, overcoming Papist (Roman, French, and Spanish) spiritual tyranny and securing the freedom to practice “true religion.” . . . Nonetheless, their Saxon mythology did imply a connection between a people’s unique cultural traits and their shared ancestry, and it was often used to distinguish British Americans biologically as well as culturally from Native Americans and African-Americans, whom they disdained as savages. When James Otis instead asserted, consistent with Coke, that all “colonist, black and white, born here, are free born British subjects,” John Adams was one of many who “shuddered.”
John Adams, like so many other founding fathers, advocated homogeneity as the best way to insure the kind of Republican citizenship that would prove beneficial to the success of a Republican Constitution.
If you want to understand what a singular kind of xenophobia is, look at Georgia. “Georgia’s citizenship laws reflected a cautious and suspicious attitude toward the political and personal character of foreigners in general and of Scotsmen in particular. . . . Scotsmen who arrived in the state were to be deported except those ‘who have exerted themselves in behalf of the freedom and Independence of the United States;’” i.e. those that had fought in the Revolutionary War on America’s side. Georgia was stricter on naturalization too. For immigrants who weren’t Scottish, all “free white persons” seeking citizenship were required to enroll their names in the superior court records of the county where they proposed to reside. By this procedure, they gained the right of “acquiring possession or holding and Selling devising or otherwise disposing of Personal property and renting houses or lands from Year to Year” and “the right of suing for all such debts, demands or damages other than for real estate.” A twelve-month residency requirement had to be fulfilled before an alien could gain the rights of a “free Citizen” by being in possession of a certificate from the county grand jury “purporting that he hath demeaned [deemed] himself as an honest man and friend to the Government of the State” and by taking an oath of allegiance. The new “free Citizen” could not vote for the legislative candidates or hold any office of trust or profit until fulfilling a seven-year residence and undergoing a special act of legislative naturalization. He was also to remain subject to aliens’ duties for a period not specified by the general statute. These regulations made Georgia’s free Citizen closer to British denizens than natural-born subjects, especially with the inclusion of aliens’ duties.
Dr. Conspiracy: “So at least in Georgia and in England those born in the place, and their children born elsewhere, are natural born subjects. In these instances, ‘subject from birth’ is consistent with the meaning of ‘natural born subject.’” This depends on when for England. If children were born to English fathers beyond British dominions before certain acts, they were variably natural-born subjects or not. In most cases they were just subjects. It varied. The term natural-born subject went through alterations as aptly related by Francis Plowden. I will agree that those born inside Georgia were designated natural-born subjects.
I regard your reference to Oxford English Dictionary as meaningless beyond its value in tracing the linguistic history of the term natural-born. Natural-born did not figure in the 49 Samuel Johnson dictionaries I studied to 1854. The first dictionary I encountered in non-Samuel Johnson dictionaries to show an entry for native-born was in D59 [Hunter, Robert, The Encyclopaedic Dictionary, Syndicate Publishing Company, Philadelphia, PA. 1894]: “Born in a country; native; ‘Natural-born subjects are such as are born within the dominions of the crown of England.”—Blackstone: Comment., bk i., ch. 10.’”
As far as the value of such an entry, I believe it only lies in demonstrating the history of the term. It does not definitively prove anything about Jay’s intended meaning. Bear in mind that Noah Webster failed to understand Vattel’s definition for indigene requiring two citizen parents. D46 [Webster, Noah, An American Dictionary of the English Language, S. Converse, New York, N.Y., 1828] defined indigene as “One born in a country; a native animal or plant.” Webster used the names of two experts: Evelyn and Vattel. From my eBook:
I wish to emphasize that the definition of Vattel was not the same as in any dictionary. It took till 1813 before “Indigene” made its way into an English dictionary based on Samuel Johnson’s 1773 grand revision in the form of the fourth edition of his authoritative original in 1755. The entry for indigene showed up first as: “A native. Evelyn.” In all Samuel Johnson’s dictionaries before a certain date, the identified authors that used the listed words were considered the experts that had given the meaning to the words. “Evelyn, John (1620-1706) English diarist, was born at Wotton House, near Dorking, Surrey, the younger son of Richard Evelyn, a large landowner . . . . [In October 1643, he obtained leave from the king to travel abroad—you’ll understand later that this necessity to achieve permission has to do with the English definition of natural-born subject.] From this date his Diary becomes full and interesting. He travelled to France and visited the cities of Italy, returning in the autumn of 1646 to Paris, where he became intimate [like gay, it did not mean what it does today] with Sir Richard Browne, the English resident at the court of France.” In other words, he transcribed the French term of indigène into the English spelling of indigene while writing his travel diary. That’s right; he was nothing more than the equivalent of an employee of a modern day travel agency writing travel books for tourists. The publishers publishing English dictionaries in 1813 and afterward introduced the Anglicized version of the French indigène in the form of an English equivalent to Vattel’s French term without the accent over the “e” and without entering the additional meaning introduced into the French and English editions in Vattel’s The Law of Nations.
The distinctive and important dictionary that began to confront the supremacy of English dictionaries based on Samuel Johnson’s epic 1755 dictionary was the publication of the first truly American dictionary by Noah Webster in 1828. In the actual dictionary, at the end of the definition of indigene, two authors were listed as the experts whose usage of the term gave it the definition found in the dictionary—Evelyn and Vattel. Here is how it appeared:
INDIGENE, n., One born in a country; a native animal or plant. Evelyn. Vattel.
Do you catch this right away? Webster had attributed Evelyn’s definition equal to Vattel’s. Vattel’s definition for indigene, as well as for native, was one unique to him: natives and indigenes “are those born in the country, of parents who are citizens.” Is a light going on? No lawyer, no judge can talk about Vattel’s definitions of natives and indigenes without resurrecting Vattel and understanding that his definitions are not those found in any dictionary. By the way, contrary to the thought of anti-birthers, Vattel’s book on international law was undoubtedly the most influential, most owned book on the subject in that day. “The numerous editions of the Law of Nations in French, English, German, Spanish and Italian are listed in Lapradelle, introduction, lvi-lix. To these should be added Greek, Russian, Polish, Chinese, and Japanese.” More than forty-five editions, if you count the foreign-language editions, were published between 1787 and 1854 as opposed to twenty editions of The Federalist in English and French during the same period. The editions on the law of nature and the law of nations of Grotius and Puffendorf and so many others, none of whom had any influence on the definition the natural-born citizen, were far fewer.
Dr. Conspiracy goes on to list many sources for natural-born subjects in state legislation and two for natural born citizen. I have no qualms about conceding that the American natural-born subject meant almost the same thing as the British version until the early 1700s when it began to diverge significantly, as shown by many disputes between the colonies and England. Read this please:
The Lords of Trade put their foot down by reaffirming their former opinion that neither Governor Fletcher nor any other in America “had or have any authority by their commissions to endenize foreigners; and though in some cases this power has been conferred on Governors by their Assemblies, yet it has been so limited as not to extend to any advantage to any persons denized beyond the bounds of the Government where the grant was made.” The letters of denization granted by Fletcher were “not only grounded on no authority, but of most pernicious consequence [to England] and directly contrary to the intent of the Acts of Trade [of England].”
This pronouncement ended in an order-in-council explicitly restricting colonial authority, issued on January 18, 1699/1700. The order restricted colonial governors from issuing letters of denization unless “expressly authorized to do so by their commissions.” The matter of imperial trade was specifically resolved in the declaration that “no Act of denization or naturalization in any of the Plantations will qualify any person to be Master of a ship within any of the statues made in this Kingdom, which require masters of ships to be Englishmen.”
The validity of the ruling of the Lords of Trade raised its head again with regards to the entire issue in 1736 when the Board of Trade in London called into question “whether a foreigner naturalized by an Act of Assembly in any of the plantations, can thereby claim the priviledges of natural born subjects in the kingdom.” That, in reality, had always been the issue. Could colonists confer natural-born subjectship outside the power of the crown or parliament? Colonial powers had continued to disobey the rulings of the Lords of Trade. Can I make it any clearer? Colonists did not want to follow the laws of natural-born subjectship laid down by their motherland because such laws undermined their strategies for economic progress. They were willing to give the laws lip-service but they were not willing to obey them when they went against their strategies.
The secretary of the Board of Trade answered the question by deferring to an opinion made in 1703 to deny such naturalization. Consistent with previous decisions, aliens naturalized in a particular colony were considered Englishmen only in that province with the practical result that they should forget about buying ships and transporting cargoes because once beyond a river they were fair game. They were aliens anywhere beside their colony. [This rule contrasted with both Britain’s and America’s definitions of natural-born subjects.] The colonies had responded with attempts to get around this series of rulings beginning in the 1680s that specifically took the denization powers away from governors and naturalization powers away from assemblies. Colonial assemblies had resorted to naturalizations in block, mimicking the British Parliament, which wasn’t happy about the power grab. For example, in November 1700 the Pennsylvania assembly passed an act of empowering the “governor and his heirs, or his or their lieutenant and governor for the time being, by a public instrument under his or their broad seal,” to naturalize aliens, thereby establishing a mode of executive naturalization similar to that approved in Virginia in 1680. The third section of the act provided that all “Swedes, Dutch, and other foreigners” settled in the territory prior to Penn’s charter “shall be deemed and by this act are declared to be fully and completely naturalized.” A vehement response from London forced repeal some years later. The third section was drafted because religious refugees from the German Rhineland had begun to arrive en masse in 1683.
Dr. Conspiracy, by the time of the legislation you list in the 1770s, colonists were developing a different version of natural-born subjectship that embraced different rules for ownership and naturalization and a major one in adopting expatriation. It took to the mid-1770s before they started to toy with the right of expatriation. (See my response to Ballantine.)The right to expatriation was the center of the debate about trade, making it a prime element of subjectship vs. citizenship. In his judgment, Scott wrote after our constitution but had always adhered to the same in the 18th century: “The question, therefore, comes to this, whether the claimant is, quoad this property, to be considered as a British subject. For some purposes he is undoubtedly so to be considered. He is born in this country, and is subject to all the obligations imposed upon him by his nativity. He cannot shake off his allegiance to his native country, or divest himself altogether of his British character by a voluntary transfer of himself to another country. For the mere purposes of trade he may, indeed, transfer himself to another state, and may acquire a new national character. An English subject, resident in a neutral state, is at liberty to trade with the enemy of this country in all articles, with the exception of those which are of a contraband nature.” Scott was still in the government camp when holding to the belief that once a British subject always a British subject. He was officially against expatriation, although considering his exchange with Rufus King and his feeling for Vattel’s point of view, I would be quite willing to believe that inside he was in favor of expatriation. Hence, as I have emphasized, the disadvantage the Americans incurred by the British concept of natural born subject as it adversely impacted their native trade lead them to differentiate from and defer to their own evolving concept.
Dr. Conspiracy: In 1795, the Chief Justice of the Connecticut Court wrote in his book, A system of the laws of the State of Connecticut, again using the terminology “natural born subject.” Also the quotation: “It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born.” That’s my argument supporting diverging and mutually exclusive citizenships. Natural-born subjects owed allegiance to the king. American citizens owed allegiance to the United States of America. I deem that a huge difference. If American citizens were equal to British natural-born subjects, they would have owed their allegiance to George III and would have been declared legally treasonable upon July 4, 1776.
Dr. Conspiracy: “Indeed in 1797, the legislature of Massachusetts proposed an amendment to the US Constitution using “natural born subject” and “natural born citizen” in the same document. [1798, right?].
That proposal was predated by:
“Saturday, July 5, 1788. Sec. 2. Clause 2. Amendment moved by Mr M. SMITH,
Resolved, as the opinion of this committee, that the congress should appoint, in such manner as they may think proper, a council to advise the president in the appointment of officers; that the said council should continue in office for four years; that they should keep a record of their proceedings, and sign the same, and always be responsible for their advice, and impeachable for mal-conduct in office; that the counsellors should have a reasonable allowance for their services, fixed by a standing law; and that no man should be elected a counsellor who shall not have attained to the age of thirty-five years, and who is not either a natural born citizen, or has not become a citizen before the 4th day of July, 1776.”[1]
Now, why on Earth do you think Mr. Smith would have used the term “natural born citizen” if it didn’t mean anything special? Why would he insist that the counselors share the same citizenship restriction as the president? If he had wanted to exclude just naturalized citizens, he could have simply said “citizens, not naturalized” or “non-naturalized citizens” excluded. He used natural born citizen because he wanted to exclude plain citizens and naturalized citizens after the expiration of the grandfather clause. In every legal resolution ever made up to that time, citizens included native born citizens but not natural born citizens.
He was not an attendee to the Constitutional Convention but he seemed cognizant of the division between Citizen and natural born Citizen. He was crystal clear as to the separation of natural born citizen from “or a citizen before the 4th day of July 1776.” He knew that the presidential eligibility clause had meant “at the time of the adoption of the Constitution” to modify Citizen only. He just wanted the limiting date to go farther back than the adoption of the Constitution. This is strong corroborative proof of my conclusion. [I know, not for you.]
I never said natural-born citizen was not an enigma. The confusion has lasted centuries. I believe that Smith knew the real meaning but I never gave his proposed action the status of anything but circumstantial evidence.
As far as your reference to Burke is concerned, I will repeat the conveyed belief of the House in 1967:
The House Record attributed the mistake by the 1790 U.S. Congress in using the term “natural born citizen” instead of “citizen” for the children born beyond sea to several mix-ups concerning English precedent. “Manifestly, Mr. Burke had given the wrong reference to the Act of Parliament of the 12th year of William III which was an inheritance law. But, it was a naturalization bill and the reference to the English acts shows the origin of the inadvertent error in using the term natural-born citizen instead of plain ‘citizen’ came from copying the English Naturalization Act. . . . it is found that this act used the term ‘natural-born’ through inadvertence which resulted from the use of the English Naturalization Act (13 Geo. III, Cap 21 (1773)) as a pattern when it was deemed necessary (as stated by Van Dyne) to enact a similar law in the United States to extend citizenship to foreign-born children of American parents.”
You know I had no interest in looking into any federal or state supreme court decisions until Part II. If you insist that “We might look to a decision from the Massachusetts Supreme Court, Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813), which says:
And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”
I’ll tackle it. It clearly has no bearing. American citizens after the Constitution were never born within the ligeance of a King and under a King’s obedience unless Washington was our king and oaths were administered to him. So much for intelligent judges.
“Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.” Native-born is a part of the requisites for natural-born subject and half the requisites for natural born Citizen. Subject in the 18th century was most always for monarchs or princes and citizen was primarily for republics throughout history, but in that time mainly the U.S.
I believe that your premise–“However, the Federal Convention only wrote the US Constitution, they didn’t adopt it. The meaning of the Constitution should [be] the meaning that the state ratifying conventions voted for”–is the very reasoning that led us to the Supreme Court’s distortion of our original Constitution. Of course, I will not accept it. If I had, it would make me the idiot all you people describe me to be. I repeat, the framers did not explain the Constitution in great detail because they used the same strategy that Barak Obama used for his hope and change. Why not let voters fill in the blanks with their own fancies so that they would vote for his nebulous hope and change. You all let it happen to you. Why do you think our founding politicians were so much different?
At any rate, the American natural-born subject had evolved away from the original American natural-born subject significantly by the time of The Declaration of Independence. I agree the term was “not widely known by the people who ratified the Constitution.”
O.K,. I strayed a bit here and there.
[1] Ibid., p. 381.
Before continuing with the main current of my discussion, I want to mention a few points in response to Bob’s latest, and to note how he misapprehends his sources.
In July of 2010, I published an article: “An important essay on “natural born citizen.” In 1967, in the context of a possible candidacy of the Mexican-born George Romney for President, Congressman Dowdy requested than an unpublished essay by a DC Attorney, Pinckney G. McElwee, be entered into the House Record. Dowdy thought the essay interesting and because it was unpublished, he wanted to make it available to his colleagues. Bob Gard cites this essay in his book, and in his response preceding; however, instead of accurately representing it as an essay by a private attorney read into the record of the House, he uses language that attributes its conclusions to the House of Representatives itself by saying (emphasis mine):
and
and
and finally
As we all know, all sorts of things get read into the Congressional Record, and I sincerely doubt that the lengthy text in question was even read aloud before the House, much less “discussed”, “debated” or “endorsed.”
The second thing I would say about McElwee’s essay, however significant or not it is in context, is that it is the death to Bob’s own theories, because it says:
and
McElwee does not help Bob’s “two citizen parent” theory one wit.
The fact of the matter is that a piece of legislation was passed by the First Congress that declared certain foreign-born US citizens to be “natural born citizens.” This is very troubling for Bob’s viewpoint that only US-born citizens can be President. So he basically explains away the fact that this law was passed by both houses of Congress and signed by the President of the United States, by saying it was in error and argues this based on his imagination.
Bob says:
and
Bob imagines: 1) All of the delegates who wrote the Constitution and who were members of the First Congress (including James Madison, the principal author of the Constitution), plus George Washington (who was both President of the Federal Convention of 1787 that drafted the Constitution) who signed the 1790 Act, failed to notice the error and 2) that the phrase “natural born citizen” was specifically “struck” in the first place.
The evidence does not support specific striking of the phrase “natural born citizen.” The 1790 act was repealed in its entirety and a replacement Act was written in 1795. There is no record in the debate of the phrase “natural born” being discussed, much less stricken and the sentence in the 1790 Act that contains the phrase “natural born” was not simply copied into the replacement 1795 Act with the phrase deleted. See my article: “The Naturalization Acts of 1790 and 1795” for the text of both acts.
If one believes, as I and most constitutional scholars do, that “natural born citizen” means “citizen at birth,” then no real change was affected in the part of the Act dealing with the foreign-born children of citizen fathers. I personally find it hardly credible that the First Congress, having among it members of the Federal Convention of 1787, made a “mistake” nor do the records of the Congress from 1795 indicate that they thought they had. It would be begging the question to use the change in the 1795 Act as evidence of why it was changed.
Madison himself is on record stating that the sources of citizenship, place of birth and parentage, are an either/or proposition, not both/and. Madison wrote:
This seems to me a very strong statement from Madison that allegiance comes from birth, and it’s force can come from either parentage or place. This would seem to demolish Bob’s claim that Madison saw an error in the 1790 legislation and held a different view of citizenship from what he plainly said.
And so Bob begs the question, having presented no historical reference whatever that Madison felt the phrase was a mistake, and even less that he thought that it was “important.” All we know is that a textually distinct replacement bill did not use the phrase. If, in fact, “natural born citizen” means “citizen at birth” (which is what the dictionary says) then no change was effected at all in the replacement Act of 1795.
Bob makes a curious comment:
But it is precisely the linguistic history that I wanted to show. The only usage, both before and after 1789, in the OED is that of a character acquired at birth, especially in the term “natural born subject.” The OED is a work of scholarship (something Bob fails to value) and the fact that various old dictionaries do not have entries for “natural born” doesn’t preclude the OED from determining usage from historical documents, as it does, dating back BEFORE Calvin’s case. Bob is so twisted up in his Vatellian views, that if a dictionary disagrees with Vattel, he says the dictionary is wrong (“[b]ear in mind that Noah Webster failed to understand Vattel’s definition for indigene requiring two citizen parents”).
So if one misrepresents their sources, begs the question, makes up facts, and discards all the evidence that doesn’t fit the theory, why should anyone be surprised that the resulting conclusions are wrong?
Back to the main stream of the debate, Bob says:
and
Bob is arguing that the controlling meaning of “natural born citizen” comes from some external principle, and indeed he seems to think that this true meaning was largely unknown and that the person (John Jay) who Bob believes is the chief American proponent of the theory (although no documentation exists to support this), was not even at the Federal Convention, nor did he convey such a definition to the Convention in his correspondence. In fact, Bob can’t find anyone contemporary to the 1787 Federal Convention who expressed his two-citizen parent view. Even John Jay, reasonably believed to be the source for the Constitution’s choice of phrase “natural born citizen,” never defined the term beyond saying it meant not a “foreigner” nor does the record of the New York ratification convention, at which Jay was a delegate and spoke, have any such language, nor does The Federalist Papers which is a defense of the Constitution authored in part by Jay himself say such a thing as Bob attributes to Jay.
Now let me remind Bob of these words from the Declaration of Independence (emphasis added):
It seems to me that Bob is arguing that the Presidential Eligibility Clause somehow went into effect without the consent or even the knowledge of the governed, and as an American, that is just something that I cannot accept.
Since Bob has conceded that the people who adopted the Constitution did not share his own viewpoint, I think I would be justified in saying that he had conceded the debate in toto; however, I would like to continue the discussion with a new question:
Who gets to decide whether Bob’s definition of “natural born citizen” is correct?
I was precise about references to McElwee and others. “The discussion of Congress in the 1967 session, the most significant since the quote from Marshal’s participation in the 1824 court case, revolved entirely around English and American law precedents and English and American jurists like William Blackstone and Pinckney McElwee.” English authors like Dicey were quoted, in his case from his 1896 Conflicts of Law, page 173, “‘Natural-born subject’ means a British subject who has become a British subject at the moment of birth.” And on page 175, “A naturalized British subject means any British subject who is not a natural-born British subject.” Definitions from American dictionaries like Black’s Law Dictionary, Bouvier’s Law Dictionary, and Webster’s Dictionary were cited for their entries on “natural” and “native.” The record cited Levy v. McCartee, 31 US (6 Pet) 102: “It is too plain for argument, that the [English] common law is here spoken of, in its appropriate sense, as the ‘unwritten law of the land, independent of statutory enactments.’” The record introduced analogous viewpoints. “Citing 1 Kent Com. 429. It should be borne in mind that the English common law did not become the common law of the United States.” This was powerful insight. And the logical conclusion was reached: “But, the English common law is referred to in explaining the meaning of the language used by the framers of the Constitution who were familiar with its terminology. Thus, in determining the meaning of the term ‘natural-born citizen,’ as used in the Constitution, we should inquire what the language meant to the members of the Constitutional convention, and not what the English common law and statutory law was in all of its ramifications relating to the subject of citizenship. It is clear that under the English common law this term ‘natural born’ meant ‘native born’, . . .” Bravo, finally some logic, reason, and common sense played their appropriate roles. Of course, all the insight was lost because the House wasn’t able to apply the logic that, since “natural born” in English common law meant “native born,” it did not necessarily follow that native born in American jurisprudence and the American language meant natural born. This belongs in the linguistic part of my research, which leads to the recognition that there were differences between the British English and American English, which began to evolve before the independence of America.”
I went back to the record and read that Mr. Bingham mentioned he had recently read the essay and incorporated it into the House Record. Regardless whether it was Bingham or Dowdy, you have a good point. I changed the sentence to read “The House incorporated into the House Record an essay that broached a possible mistake which could have been made by the 1790 U.S. Congress in using the term ‘natural born citizen’ instead of ‘citizen’ for the children born beyond sea to several mix-ups concerning English precedent.” I believe I acknowledged in my eBook that I could have made mistakes and readers should please let me know when I have. Does the altered sentence meet your approval?
Please elaborate your next protest about “discussion in Congress.” Everywhere in the Record, the names of Representatives were followed by quotes. What else but a discussion?
What do you have against the next sentence? Is it debate? Would you rather I use discussion? The Record read: “A question exists whether he would be eligible to be inaugurated, if he should be elected to the Presidency because of a specific requirement of the Constitution of the United States that the President be ‘a natural born citizen.’”
Dr. Conspiracy objected to the sentence: “Later the House seemed to endorse this viewpoint when discussing three university law journals.” I’ll take suggestions how the sentence should be revised. My intention was to say that the House seemed to endorse the viewpoint that Madison was the key person in wanting to strike “natural-born citizen” from the 1790 act. If my wording suggests something different, please offer an alternative. I believe what I wrote but I have no problem with rephrasing the sentence to read “By introducing mention of the three law journals, the House seemed to consider the possibility that Madison was the key person in wanting to strike ‘natural-born citizen’ from the 1790 act.”
“As we all know, all sorts of things get read into the Congressional Record, and I sincerely doubt that the lengthy text in question was even read aloud before the House, much less ‘discussed’, ‘debated’ or ‘endorsed.’” To me the format of the Record seems to infer at least two of these verbs for sure.
As far as Luria v. U.S., 231 US 9 is concerned in 1913, we’re back to precedent long after the fact. I contend it proves nothing. I’ll say it again much to your chagrin; none of the people involved signed the Constitution. This is constitutional distortion by way of interpretation.
The House, to my knowledge, published no official determination outside the record. The record on page 15880 finished the House’s reasoning: “Mr. Romney was born an alien and was naturalized automatically by Act of Congress. The U.S. Naturalization Law as it existed at the birth of Mr. Romney did not even purport to ‘deem’ him to be a natural born citizen as did the British. It merely declared him to be citizen. He is, therefore, not a ‘natural-born citizen’ according to the English common law, nor an American natural-born citizen under the Constitution of the United States Luria v. U.S. 311 US 9.”
The same applies to “The language used in the Constitution must be construed with reference to the English Common Law” [citing 1 Kent’s Commentaries, par. 336].” Anybody that claims the language used in the Constitution should be construed with reference to the
English common law has not discovered all the quotations of our founding fathers that vehemently defended the fundamental differences between our constitution and anything British. But please remember the House Record also cited Kent: “Citing 1 Kent Com. 429. It should be borne in mind that the English common law did not become the common law of the United States.” Is this incongruous with the result of one statement cancelling out the other? The quote in context is: “Citing 1 Kent Com. 429. It should be borne in mind that the English common law did not become the common law of the United States. But, the English common law is referred to in explaining the meaning of the language used by the framers of the Constitution who were familiar with its terminology. Thus, in determining the meaning of the term ‘natural-born citizen,’ as used in the Constitution, we should inquire what the language meant to the members of the Constitutional convention, and not what the English common law and statutory law was in all of its ramifications relating to the subject of citizenship. It is clear that under the English common law this term ‘natural born’ meant ‘native born’, . . .” Bravo, finally some logic, reason, and common sense played their appropriate roles. Of course, all the insight was lost because the House wasn’t able to apply the logic that, since “natural born” in English common law meant “native born,” it did not necessarily follow that native born in American jurisprudence and the American language meant natural born. This belongs in the linguistic part of my research, which leads to the recognition that there were differences between the British English and American English, which began to evolve before the independence of America.
Let me start with the danger of allowing latecomers the right to interpret the Constitution by citing some quotations. Read these with the idea that distorting the true meaning of natural-born citizen reduces the protection for America that a presidential candidate having been raised by two citizen parents will afford in increased loyalty:
Actually,’ says Mr. Walter E. Weyl, ‘our Constitution is amended to-day (as it has been amended for the last 120 years) chiefly by process of interpretation. New senses are given to old words; the growing political foot, by sheer pressure, changes the old stiff shoe’. And Lord Bryce speaks of the expedient ‘which is euphemistically called Extensive Interpretation, but may really amount to Evasion.’ So there are other means of releasing oneself from the inconvenient restraints of the Fundamental Law besides directing against it the frontal attack of a formal amendment.
. . .
. . . According to Professor Goodnow ‘the great increase in the action of the central government of the United States is due to the interpretation given by Congress and upheld by the Supreme Court to a number of powers granted to Congress in rather general terms by the Constitution.’
The most important of these is the so-called ‘commerce clause,’ which authorizes Congress ‘to regulate commerce with foreign nations and among the several States and with the Indian tribes.’ By ‘commerce’ the framers of the Fundamental Law meant the carriage (or, as it is called in America, the ‘transportation’) of goods. But this clause, which was little utilized for a hundred years, has been held by the Supreme Court to justify not only the Sherman Act and other anti-trust legislation but even an Act for the suppression of lotteries.
. . .
It is at once curious and instructive,’ remarks Mr. Woodrow Wilson in the chapter on the Executive in his Congressional Government, ‘to note how we have been forced into practically amending the Constitution without constitutionally amending it.’
. . .
‘It may be asserted without much exaggeration,’ declares Professor Dicey, ‘that the conventional element in the Constitution of the United States is now as large as in the English Constitution.’ And some of these usages are of the most radical nature, fully justifying Dr. C. A. Beard’s statement that ‘the most complete revolution in our political system has not been brought about by amendments or by statutes, but by the customs of political parties in operating the machinery of the government.’
The above are meaningless to you because all of you don’t mind other people interpreting the Constitution in opposition to the plain language. “I know it is hard for Anglophiles to accept that the colonists weren’t copying English common law and the British Constitution when they were developing their new federal and state governments. In a letter dated circa July 25, 1789, while there was a movement in the U.S. Senate to allow titles in opposition to the U. S. Constitution, Article I, Section 10, Walter Jones wrote: ‘The English Constitution is a vicious one pretty well patched up & corrected, and the Exchange for it, of one originally sound and good, would be an Ill bargain.’ I think that sums it up. Stop looking for the meaning of natural-born citizen in British common and constitutional laws.’”
James Wilson said: “The order of things in Britain is exactly the reverse of the order of things in the United States. Here, the people are masters of the government; there, the government is master of the people.” This attitude was the reason that Americans used to give homage to the adage: “Government exists to serve the people. When people serve the government, then you have tyranny.” Where are we headed? Who will the doctors and nurses soon serve in our country? Is that why socialized medicine seemed to be the natural path for the British?
Pinckney wrote when comparing the American to the British constitution:
“Every member of the Society (American) almost, will enjoy an equal power of arriving at the supreme offices & consequently of directing the strength & sentiments of the whole Community. None will be excluded by birth, & few by fortune, from voting for proper persons to fill the offices of Government — the whole community will enjoy in the fullest sense that kind of political liberty which consists in the power the members of the State reserve to themselves, of arriving at the public offices, or at least, of having votes in the nomination of those who fill them.
If this State of things is true & the prospect of its continuing probable, it is perhaps
not politic to endeavour too close an imitation of a Government calculated for a people whose situation is, & whose views ought to be extremely different. Much has been said of the Constitution of G. Britain. I will confess that I believe it to be the best constitution in existence; but at the same time I am confident it is one that will not or can not be introduced into this Country, for many centuries. — If it were proper to go here into a historical dissertation on the British Constitution, it might easily be shewn that the peculiar excellence, the distinguishing feature of that Governmt. can not possibly be introduced into our System — that its balance between the Crown & the people can not be made a part of our Constitution. — that we neither have or can have the members to compose it, nor the rights, privileges & properties of so distinct a class of Citizens to guard. — that the materials for forming this balance or check do not exist, nor is there a necessity for having so permanent a part of our Legislative, until the Executive power is so constituted as to have something fixed & dangerous in its principle — By this I mean a sole, hereditary, though limited Executive.
That we cannot have a proper body for forming a Legislative balance between the
inordinate power of the Executive and the people, is evident from a review of the accidents & circumstances which give rise to the peerage of Great Britain— I believe it is well ascertained that the parts which compose the British Constitution arose immediately from the forests of Germany; but the antiquity of the establishment of nobility is by no means clearly defined.”
This should make it eminently clear to everyone why so many people came to the conclusion that the British Constitution was behind our Constitution. Montesquieu was quoted often in relation to our Constitution. Montesquieu had praised the British Constitution, picking it as the standard for all constitutions because of its perceived virtues. The implication that it was behind ours is patently false because it was derived from the prolific number of references to the French author, not what the references meant. Those references were mostly to Montesquieu’s rejection of the republican form of government for such a large territory as the United States. Yet how easy was it for those who were lazy to create an illogical train of thought that went like this: most of the references of our famous framers and founding fathers were made to Montesquieu; Montesquieu favored the British Constitution; our Constitution is based on the British Constitution and British common law. Montesquieu was also enamored with British common law. I plead with the voters of America to start using their own minds. And to the young people, I say, don’t believe that your teachers have been taught well our American history. Confront them and make them prove what they say. You’ll get in trouble for it, as I did, but you can restore freedom. My generation with the onslaught of a new powerful liberalism damaged America deeply. Be staunchly against distorted history; save the single right most important in this world—freedom.
And with the above in mind, look upon the Supreme Court with skepticism. “THE SUPREME COURT: THEY WILL MOULD THE GOVERNMENT INTO ALMOST ANY SHAPE THEY PLEASE,” became the headline of the warning of Brutus in the New York Journal on January 31, 1788:
“The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also in equity. [Please note that ‘the meaning of the constitution in law’ does not equate to the “the meaning of law in the constitution,” but it has easily been turned around by liberals to mean that. Your Supreme Court justices believe they have that right—to determine the meaning of law in the constitution. Tell them they don’t.]
By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter. [Herein lies the biggest problem we have today. People who had nothing to do with framing the Constitution believe that they can interpret it better than people who wrote it precisely without a need for interpretation. It only needs people who can read English without a political agenda.]
‘From this method of interpreting laws (says Blackstone) by the reason of them, what we call equity,’ which is thus defined by Grotius, ‘the correction of that, wherein the law, by reason of its universality is deficient; for since in laws all cases cannot be foreseen, or expressed, it is necessary, that when the decrees of the law cannot be applied to particular cases, there should some where be a power vested of defining those circumstances, which had they been foreseen the legislature would have expressed; and there are the cases, which according to Grotius, lex non exacte definit, sed arbitrio boni viri permittet.”[1] (Loosely quoted from William Blackstone, Commentaries on the Law of England (4 vols., 1765-69), “Introduction,” Bk. 1, sec. 2, pp. 61—62. In that edition, the quotation from Grotius reads: “when general decrees of the law come to be applied. . .” (rather than “when the decrees of the law cannot be applied.; “have excepted” (rather than “have expressed”); and “fixed precepts” (rather than “fixed principles”). The Latin passage from Grotius may be translated: “The law is not exact on the subject, but leaves it open to a good man’s judgment.”)[2]
Before you let a liberal jump in and declare, “See, that’s why the Supreme Court has the right to tell us what is in the Constitution,” I beseech you to go back and read the title of Brutus’ article. He knew how liberals thought and how the Supreme Court would act long before that third branch of government fulfilled his prophecy. His title showed his disapproval. He recognized that the Supreme Court would find its excuse to transform itself into an almost omnipotent branch of government by exploiting the legal term “equity.” But the famous “equity” in the sentence in Article III, Section 2. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, . . .” does not mean “equity” in the Constitution. There is no “in” in “under.”
In Luther Martin’s letter, it was written:
That the President was not likely to have more wisdom or integrity than the senators or any of them, or to better know or consult the interest of the states, than any member of the senate, so as to be entitled to a negative on that principle—And as to the precedent from the British constitution (for we were eternally troubled with arguments and precedents from the British government) it was said it would not apply. The king of Great Britain there composed one of the three estates of the kingdom; he was possessed of rights and privileges as such, distinct from the lords and commons; rights and privileges which descended to his heirs, and were inheritable by them; that, for the preservation of these, it was necessary he should have a negative; but that this was not the case with the president of the United States, who was no more than an officer of the government; the sovereignty was not in him, but in the legislature: And it was further urged, even if he was allowed a negative, it ought not to be of so great extent as that given by the system, since his single voice is to countervail the whole of either branch and any number less than two thirds of the other; however a majority of the Convention was of a different opinion, and adopted it as it now makes a part of the system. [This is another example of how the delegates fought against imitating the British Constitution, and yet, the majority of lawyers and judges in America hold relentlessly to the idea that our Constitution and our common law are patterned after British equivalents. No wonder our foreign enemies claim we don’t have a culture of our own.
Blackstone was quoted with the same rarity. On the same day, James Wilson in a long speech quoted him once:
“There necessarily exists in every government, a power, from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable. Where does this power reside? To this question, writers on different governments, will give different answers. Sir William Blackstone will tell you, that in Britain the power is lodged in the British Parliament; that the parliament may alter the form of the government; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. [The American Constitution is not based on the British Constitution.] There are, at least, no traces of practice, conformable to such a principle. The British constitution is just what the British Parliament pleases. [Though the American Constitution is not what the Congress pleases, unfortunately it has become what the Supreme Court pleases.] When the Parliament transferred legislative authority to Henry VIII., the act transferring, could not, in the strict acceptation of the term, be called unconstitutional.
To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states.
Perhaps some politician, who has not considered with sufficient accuracy, our political systems, would answer that, in our governments, the supreme power was vested in the constitutions. This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed, the superiority, in this last instance, is much greater, for the people possess, over our constitutions, control in act, as well as right.
The consequence is, that the people may change the constitutions whenever and however they please. [The people, not the President, not the Congress and certainly not the Supreme Court by “interpreting” it.] This is a right of which no positive institution can ever deprive them.
Mr. James Iredell on Saturday, July 26, 1788 said:
“The British constitution, the theory of which is much admired, but which, however, is in fact liable to many objections, has divided the government into three branches. The king, who is hereditary, forms one branch, the lords and commons the two others; and no bill passes into a law without the king’s consent. This is a great constitutional support of his authority. By the proposed constitution, the president is of a very different nature from a monarch. He is to be chosen by electors appointed by the people—to be taken from among the people—to hold his office only for the short period of four years—and to be personally responsible for any abuse of the great trust reposed in him.
In a republican government, it would be extremely dangerous to place it in the power of one man to put an absolute negative on a bill proposed by two houses, one of which represented the people, and the other the states of America. It therefore became an object of consideration, how the executive could defend itself without being a competent part of the legislature. This difficulty was happily remedied by the clause now under our consideration. The executive is not entirely at the mercy of the legislature; nor is it put in the power of the executive entirely to defeat the acts of those two important branches. . . .” Iredell went on to point out the differences in the American constitution that made it unique.
“Monday, July 28, 1788
[Iredell] It has been the opinion of many gentlemen, that the president should have a council. This opinion, probably, has been derived from the example in England. It would be very proper for every gentleman to consider attentively whether that example ought to be imitated by us. Although it be a respectable example, yet, in my opinion, very satisfactory reasons can be assigned for a departure from it in this constitution.
It was very difficult, immediately on our separation from Great Britain, to disengage ourselves entirely from ideas of government we had been used to. We had been accustomed to a council under the old government, and took it for granted we ought to have one under the new. But examples ought not to be implicitly followed; and the reasons which prevail in Great Britain for a council do not apply equally to us. . . .” The founders were usually cognizant of the many differences between the American and English Constitutions. Why are some of you still looking for the meaning of natural-born citizen in Britain?
“Tuesday, May 20, 1788.
This day the Convention went through the discussion of the federal constitution by paragraphs.
The bulk of the quote lends more correlative evidence that our framers did not think the Constitution they wrote drew much from the British Constitution, or any other European constitution for that matter. It is plain that Pinckney felt the Constitution was already inspiring Europe to take notice and incorporate parts of it in her constitutions and common laws, producing more correlative evidence to the concept that the Constitution was more unique than copied. By now, dear anti-birther, you must have given up your belief that natural born Citizen was British in origin, right?
Another delegate who was avid about the distinct genius of the American people to create a different and better constitution than the British Constitution was Randolph:
“‘I do not mean to throw censure on that excellent fabric, the British government,’ said Randolph; ‘if we were in a situation to copy it, I do not know that I should be opposed to it. But the fixed genius of the people of America requires a different form of government.’”
“The attachment to monarchy in the United States had not been consumed by volcanic fires; it had disappeared because there was nothing left in them to keep it alive, and the nation imperceptibly and without bitterness outgrew its old habits of thought. . . . But Hamilton, finding a home in the United States only after his mind was near maturity, did not cherish toward the states the feeling of those, who were born and bred on the soil and received into their affections the thought and experience of the preceding generation.”
“Madison replied: ‘. . . There is more responsibility in the proposed government than in the English. Our representatives are chosen for two years, in England for seven. Any citizen may be elected here; in Britain no one without an estate of the annual value of six hundred pounds sterling can represent a county; nor a corporation without half as much. If confidence be due to the government there, it is due tenfold here. (Elliot, iii. 393-335.)’”[3]
This was politics. The advocates of ratification played on the uniqueness of the American Constitution, how it was not copied from the British counterpart, and how it was better. The dissenters extolled the British Constitution at the expense of the American Constitution. Both agreed that there was little to be compared in terms of laws taken from the British Constitution and injected into the American Constitution.
I like the next quotation: “The materials for building the American constitution were the gifts of the ages.” This conforms totally to my premise about the true roots of our Constitution.
“But the distinctive character of the new people as a whole, their nationality [American origin], so to say, was the principle of individuality which prevailed among them as it had nowhere done before. This individuality was strengthened by the struggles with Nature in her wildness, by the remoteness from the abodes of ancient institutions, by the war against the traditions of absolute power and old superstitions, till it developed itself into the most perfect liberty in thought and action; so that the American came to be marked by the readiest versatility, the spirit of enterprise, and the faculty of invention. In the declaration of independence the representatives of the United States called themselves ‘the good people of these colonies.’ The statesmen who drew the law of citizenship in 1776 made no distinction of nationalities, or tribes, or ranks, or occupation, or faith, or wealth, and knew only inhabitants bearing allegiance to the government of the several states in union.”
“It may here be remarked, that the idea of a written Constitution, emanating from and sanctioned by the people, as the basis of government and political and social rights, if not entirely a novel idea, was at least, practically, as untried experiment, prior to the formation of the State Constitutions. It had been hinted at and partially developed by some of the liberal writers and statesmen during, and subsequent to, the period of the English revolution. Vane, Sidney, and Locke, had successfully entertained the subject as an abstract political truth, and the latter had even attempted its practical development.* (* In the Carolina colonies. This curious Constitution, almost as elaborate, unique and original in its way as that remarkable instrument which more than a century afterward Sieyes presented to Bonaparte, was adopted by the Proprietaries,
but after a few years wasted in attempting to put it into practical operation it proved itself a miserable failure, and was abandoned.) But it is not too much to say that it remained a theory only, and that hitherto no successful instance of a written constitution or fundamental law had existed in Christendom. . . .” The British Constitution, remember, was an unwritten constitution.
If by maintaining that English common law reflected all laws before it and American lawyers maintain America’s laws followed English common law recognizing that the English common law sprang from others, I would not be so adamant in denying our common law was influenced by English common law on many topics as it was derived from historical common law not unique to Britain. I hope I have said that correctly. By this I mean you can call trial by jury English common law if you want as long as you recognize it started in Scandinavia. Therefore, with the acknowledgement of the roots of English common law, you recognize that it embraces huge areas of historical laws, which also means you aren’t restricting American law to unique offshoots of English common law.
I repeat: “If you want to seek precedent in English common law for ‘natural born Citizen,’ you must apply your logic equally and seek precedent in Roman law, in the law of nature and the law of nations. After applying the same logic, you must be willing to accept that Jay’s ‘natural born Citizen’ could have equally been—at the very least—the result of ‘natural born subject’ minus perpetual allegiance or the result of Vattel’s new and added definition for natives and indigenes minus nothing.”
The colonists violated English common law by allowing assemblies to naturalize children born in the colonies when English common law explicitly expressed in the charters of some of the colonies that the colonists were required simply to deem such children natural-born subjects. The answer is clear—the colonists wanted and were used to doing things their way . . . except, of course, when it came to natural born Citizens in the eyes of the twenty-first century anti-birthers
Though James Kettner opined that, “The debates [in the colonies about English dominance] that began in the 1760s would reveal how far they [the colonists] had moved from the principles of English law, for the colonial experience had already initiated the transformation of Americans from subjects to citizens,” he never questioned that John Jay’s natural born Citizen deviated from anything found in English common law. Why? I will venture the supposition that he worried about the future favorable reception for his book if he stirred that hornet’s nest. This problem of political correctness is a blindfold that both Democrats and Republicans voluntarily tie over their eyes. My research proves this 100% beyond any shadow of doubt.
Hamilton was one of the first to introduce the idea of judicial review, which the judiciary did not possess in Britain. “For the first time in American history, before Hamilton’s arguments five years later in a similar vein in Rutgers v. Waddington, an American court asserted the concept of judicial review, including the right to declare laws passed by a legislature unconstitutional.” This separated America from Britain drastically.
As now, there were a considerable number of American public jurists that told everyone to look to the English Constitution and English common law for the sources of our American Constitution and American common law. Here comes the main reason that I included a short biography of Charles Jared Ingersoll: “Though probably to-day known to but a few, ‘Inchiquin’ was very widely read in its day, and was undoubtedly an important contribution to the development of the American character. A sketch of Mr. Ingersoll in the Democratic Review of October, 1839, speaks of the work as follows, and probably represents his own feelings about it: The United States were yet British in almost every thing except government . . .”[4] Except government!
Madison said:
The first class of cases to which its jurisdiction [Supreme Cort] extends, are those which may arise under the constitution; and this is to extend to equity as well as law. It may be a misfortune that, in organizing any government, the explication of its authority should be left to any of its co-ordinate branches. There is no example in any country where it is otherwise. There is a new policy in submitting it to the judiciary of the United States.
This is the second time I quoted this. He means this part of our Constitution to all others is unique.
I must stop at “Bob imagines: 1) All of the delegates who wrote the Constitution and who were members of the First Congress (including James Madison, the principal author of the Constitution), plus George Washington (who was both President of the Federal Convention of 1787 that drafted the Constitution) who signed the 1790 Act, failed to notice the error and 2) that the phrase “natural born citizen” was specifically “struck” in the first place.”
People have flown in to see my family. I won’t be able to continue until Sunday afternoon.
I will answer, however, “Who gets to decide whether Bob’s definition of ‘natural born citizen’ is correct?” The Congress and/or the people were able to decide from the beginning of the Constitution till now. I will obey their answer but I will continue to try to disseminate the information in my eBook.
Now please answer a question for me. How many of the presidents who served from the expiration of the grandfather clause in the presidential eligibility cause until now were unquestionably natural-born citizens defined as citizens born of two American citizens? My answer offhand is all except two. Was that coincidence? Did the Electoral College and later the people know instinctively? There were multitudes of native born citizens in those times with foreign parents or just one American citizen parent. In view of such high numbers, what was the probability of the occurrence of so many presidents with two-citizen parents being elected to office without some ulterior motive? Was it because our country did not have so many immigrants proportionally as now? Do our immigrants outwardly resist this definition of natural-born citizen because they desire to change our country in their own image? Or was it instinct as to the meaning of natural-born citizen?
Before moving on, it appears that I must repeat myself regarding Bob’s misapprehension of the material he cites from pages 15875-15880 of the 1976 Congressional Record of the House. Unrepentant, he says in his latest reply:
That is utter and complete fantasy. Page 15880 is the final page of Mr. McElwee’s essay inserted into the record by the request of Congressman Dowdy. All of the material on “Natural Born Citizen” on pages 15875-15880 is the essay included under the name of that single House member. There is no indication of discussion: in fact the there’s no indication that the essay was even read aloud. The conclusion that Bob attributes to the House is actually that of Mr. McElwee (not a member of the House at all!). Bob imagines that the discussion internal to Mr. McElwee’s essay was actually between House members even though it is patently obvious from the Congressional Record that this is not the case.
Everybody gets things wrong sometimes, but it is hardly excusable for someone, after the mistake is made known to them, to repeat it again. The mistake is also in Bob’s book and is a poster child for why authors need editors. Whatever Mr. Stanton did for Bob, sanity checking was not part of it. (Chapter 11 where this misapprehension of the Congressional Record appears is one of the chapters ostensibly edited by Mr. Stanton).
And again, I must point out that Bob cherry picks his sources, using McElwee for one thing, but rejecting him on others, thereby shaping history to his own prejudices, rather than letting history inform him.
Moving on, Bob says:
I think that it is more accurate to say that “under English Common Law, persons born in the Country are natural born.” In fact, British subjects born outside of the country were also “natural born” according to several statutes. This is the problem with taking a criteria as a definition. If one takes the Common Law term as a definition (“means”) then we have the Common Law contradicting statutory law. The only non-contradictory way to read this is that “natural born” means “from birth” and under Common Law, those born in the country are subjects from birth, and under statute those born outside the country to natural born subjects are also subjects from birth. Unarguably, both classes were in 1776 “natural born subjects.”
Bob then launches into a number of philosophical citations about the Constitution and its interpretation, which are rather an aside. Bob says:
This from someone who is just as ready to throw dictionaries under the bus as he is the Congress and the Supreme Court, and someone who admits that the common understanding of the term “natural born citizen” by those who ratified the Constitution is not the understanding that he is promoting. Bob impeaches himself by arguing two wholly contradictory positions. One cannot simply say that the interpretation of the Constitution is the plain language that wasn’t plain to anybody but an elite group that Bob imagines believed it.
Bob goes to great extent to show that the Americans rejected some things British when forming the US government. But he argues fallaciously that by rejecting one thing, they necessarily rejected another thing. Bob’s argument would be like saying that because the United States rejected the establishment of a state religion, that they must have rejected Emerich de Vattel’s description of “indigenes” from the Law of Nations because that treatise also advocated a state religion which the Constitution rejects.
Bob really goes off the road as he says:
Again, we see that Bob’s conspiracy-theory view of everything when he attributes scholar James Kettner’s lack of endorsement to Bob’s imaginary views of what John Jay believed to fears about how his book would be received. What hornets nest was there in 1978 when Kettner’s book came out? Again we see Bob’s inability to separate fact from unsupported speculation.
Bob didn’t complete his response yet, but he did answer my question, saying:
Since the folks Bob entrusted with the decision put Barack Obama into office, then I would say that beyond a reasonable doubt, Barack Obama is eligible because the people who decide the question have done so. Here again, we see the inherent contradiction in Bob’s position. On the one hand he argues that Americans instinctively vote for his kind of natural born citizen, but that they didn’t, that they have to be informed by his book in order to act according to their instincts.
Then Bob offers me a question:
I reject the words “unquestionably” and “defined” as begging the question, but as for the plain question of how many US Presidents born in the US since the adoption of the US Constitution had two citizen parents, I’m not sure. It’s “at least two.” It may well be that various parents of US Presidents were possessed with dual citizenship because of the jus sanguinis laws of some other countries..
Teddy Roosevelt commented about one of our Presidents, Chester A. Arthur, whose father was Irish at the time that the President was born, saying that if President Arthur had traveled to England, he could have been drafted into the British Army. Roosevelt thought that claims of foreign countries on US-born children were anathema to American ideals.
I am most troubled by Bob’s introduction of the word “instinct,” but I will try not to read Bob’s mind as to why he said that, and that I am further troubled that Bob suggests that Barack Obama was elected for some nefarious reason, other than that the people thought he would make a good President. What I will do is to answer the substantive argument, such as it is:
The first problem with that argument is that Bob just makes up the claim that there were this great multiple of potential presidential candidates with foreign parents. We have had 36 Presidents of the United States born since the ratification of the Constitution. If the number with a foreign parents is 2, then a little over 5.5% of US Presidents had one or more foreign parents.
Look at the facts about the US non-citizen population:
Year, % non-citizens
The average of those numbers is 4.2% I don’t see the presidential numbers at all out of line with the population figures. (The US Census didn’t ask about citizenship in 1960.)
I ask Dr. Conspiracy to address my comment concerning John Roberts’ use of a British-style explanatory act to let ObamaCare pass as constitutional. Are British-style explanatory acts constitutional? Does it not demonstrate how far the Supreme Court has strayed from its authority under (not in) the Constitution? Dr. Conspiracy, do you accept this kind of reasoning by the Supreme Court? If you don’t, how can you claim the Supreme Court is capable of interpreting the Constitution? Roberts reasoning is one of the most distorted in constitutional history.
You haven’t given me your explanation for the removal of “natural-born citizens” in the 1790 Naturalization Act? Please do so. I read your article covering the 1790 and 1795 acts. If it is that the term was superfluous, why did the framers stipulate it in the presidential eligibility clause? I claim that the removal is more troubling for you than for me. The House introduced into the Record: “Manifestly, Mr. Burke had given the wrong reference to the Act of Parliament of the 12th year of William III which was an inheritance law. But, it was a naturalization bill and the reference to the English acts shows the origin of the inadvertent error in using the term natural-born citizen instead of plain ‘citizen’ came from copying the English Naturalization Act.” I took out “attributed” in my reference to these sentences. You were right. I should not have used attributed.
“The record on page 15880 finished the House’s reasoning:” You have a legitimate issue with the wording. Perhaps I’ll redact it to; “The House, by introducing this evidence into the record without contradiction, acknowledged that it should be considered.” Does that eliminate your objection?
I left off at “Bob imagines: 1) All of the delegates who wrote the Constitution and who were members of the First Congress (including James Madison, the principal author of the Constitution), plus George Washington (who was both President of the Federal Convention of 1787 that drafted the Constitution) who signed the 1790 Act, failed to notice the error and 2) that the phrase “natural born citizen” was specifically “struck” in the first place.”
I never said that Madison and Washington failed to notice the error. I never wrote about an error. I concluded that the secrecy code disallowed them the freedom to make the problematic usage of natural-born citizen known to the 1790 Congress. Dr. Conspiracy, you need to read my words more carefully. The Record also showed, “The second in 1950 was 35 Cornell Law Quarterly 357. The first was so inadequately considered and lacking in citation as not to deserve mention. The only reference was to the inadvertent use of the term “natural born” in the Act of 1790 (1 Stat. 103). He did not seem to know that it was Mr. Madison who had participated in the drafting of the Constitution who had discovered the error and authorized the bill to correct it by deleting the term from the act of 1795 (1 Stat. 445).” This citation is the one that introduced the word “error” and the phrase “inadvertent use.” By the same reasoning you criticized my use of “attributed,” you are wrong in using “imagines” with Bob as the subject. Nonetheless, how can you dismiss the sentence in bold as meaningless? It qualifies as circumstantial evidence in favor of recognizing that Madison was the key player concerned with its improper usage. “. . . it was Mr. Madison who had participated in the drafting of the Constitution who had discovered the error and authorized the bill to correct it by deleting the term from the act of 1795.” It identifies the inclusion of the term as an error. Madison had known the true meaning all along but bringing it into sunlight at this later date would violate the secrecy code. It was never an error to him or Washington. They knew better.
Or perhaps, Dr. Conspiracy, you do not accept that the error was natural-born citizen in the inclusion of the 1790 act? Do you simply feel that the number of years of residency was the error? The residency clause remained with an increase in years. The “national-born citizens” term was struck. You advocate the use of dictionaries, published a hundred years after the Constitution, to support your contention that native-born = natural-born and insist this relationship is the single requisite in both natural-born subject and natural-born citizen, ignoring the other requisites in real-world definitions. Let’s use the definition of "strike" in dictionaries—to cancel, delete, or cross something out. The Naturalization Act of 1795 did not delete the term natural-born citizens and replace it with citizens? Would you prefer “replace" to any use of delete? Fine with me. Except for this replacement and the addition of more years for residency and more sections expanding the verbiage, what major changes were more important than the two I mentioned?
Do you accept that James Madison was behind the Naturalization Act of 1790? In my eBook, the 1790 act read, “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, That no person heretofore proscribed by any state, shall be admitted a citizen as aforesaid, except by an act of the legislature of the state in which such person was proscribed. (a) [This clause proved that the federal government bowed to the jurisdiction of state governments with respect to immigration, another right the federal government and the Supreme Court has usurped from the states.]
Dr. Conspiracy rejects my references to secrecy at every level. He seems not to believe in my Axiom 3. Political secrecy causes blurred gaps in the histories of all countries.
Do we agree that history happens only in one way, whether it is known or not? Do we agree that secrecy makes it difficult to know which way for sure? Do we admit that the explanation of natural-born citizen cannot be my way and Dr. Conspiracy’s way concurrently? One must be more probable than the other or a third or fourth option may be better. Do you not understand that my eBook offers extensive circumstantial, corroborative and correlational evidence which link many unexplainable events using my reasoning, among which is why natural-born citizens was struck or replaced from the 1790 act and replaced by citizens in the 1795 act? You agree that a new act was passed, somewhat different from the prior. Is that not the American way? Would not the British have passed an explanatory act stipulating that parliament had really meant subject instead of natural-born subject? Please answer these questions.
You stated, “McElwee does not help Bob’s ‘two citizen parent’ theory one wit.” Did not McElwee cast doubt on the reason that natural-born subject was compared to natural-born citizen, whether the doubt came in the form of the term or the legislation? Casting doubt does not infer a difference? Does such doubt infer that natural-born subject and natural-born citizen are simply native-born subjects and citizens with little difference or rather that there is a substantive difference? McElwee does not help me directly, but indirectly it does. It is uncertain circumstantial evidence, the same way that all your quotes of politicians and judges who had not attended the Constitutional Convention from July 25, 1787 constitute uncertain circumstantial evidence. You claim they are smoking-gun pieces of evidence. I will grant you that they confirm the belief that natural-born citizens were simply native-born citizens, but they do not explain why natural-born citizens showed up in Vattel and they become weaker as the importance of Vattel is shown to be paramount in colonial America. Have I not shown that in my eBook? Vattel shows up 1470 times in my eBook without counting the personal pronoun. Believers in your conclusions can no longer downplay the influence of Vattel. For examples, I proved with clear and convincing evidence that Jefferson used Vattel’s ideas in the Declaration of Independence and that Jefferson’s used Vattel in an attempt to convince Washington to honor various French treaties. I predict you will burst out with your belief that I know nothing of this level of proof or beyond a reasonable doubt, but don’t you know determining such levels is what a jury does to reach a verdict? Think of me as a member of the jury.
Washington was a strong advocate of linking native-born to loyalty.
“You are not to enlist any person who is not American born, unless such person has a wife and family, and is a settled resident of this country.”
“. . . [Cambridge, July 10, 1775 to Horatio Gates, Adj. Gen., George Washington] therefore, [Washington] orders for the future no man shall be appointed to these [sentry] stations who is not a native of this country . . .”
“. . . [March 17, 1778, Washington ordered that one hundred men were to form a guard for the commander-in-chief] “They must be Americans born.”
In a letter from Gen. Washington to Col. Spotswood, dated in 1777, and to be found in a recent publication entitled “Maxims of Washington,” p. 192, the following passage occurs:—
“You will therefore send me none but natives, and men of some property, if you have them. I must insist that in making this choice you give no intimation of my preference for natives, as I do not want to create any invidious distinction between them and foreigners.”
Only a blind man would interpret Washington’s written remarks as coming from a man that trusted foreigners or had a neutral attitude toward them. At the same time, he wanted to keep it a secret that he put all his trust in native-born Americans. Secrecy was the usual program for retaining as much support as he could for anything he did. As the president of the Constitutional Convention, he demanded an airtight secrecy regarding the proceedings. Washington’s demand became an unbreakable trust and was kept for three decades for the same political reason that he required that Colonel Spotswood “give no intimation of my preference for natives, as I do not want to create any invidious distinction between them and foreigners.” In my new analysis of the Naturalization Act of 1790, secrecy in the Constitutional Convention was the pivotal reason why the act started off with “natural born citizens” as a part of it. Washington never used the term natural-born citizen. He always used native or American born. Will you concede that the term came from Jay? Will you concede that it had to mean something other than native or native-born? Is it not logical to reason that the presidential eligibility clause would have contained native, native-born or American born if Washington had anything to do with it? He carried out Jay’s request. How can you be so certain that men like Washington, who favored native-born for positions of trust, would not go one step further and endorse citizens of two American citizen parents at the same time keeping it secret so as not to alienate one single potential ratifier of the Constitution?
Madison continued to stress what some people would describe as Washington’s xenophobia, but which I’d rather call reasonable caution toward foreigners. Please remember that his best political and personal friend, John Jay, shared his feelings in full measure.
“The correspondence of Gen. Washington, from the commencement of the Revolution almost to the date of his death, abounds in similar sentiments [mistrust of foreigners]. I [Madison] refer to a few of his letters:—
‘Morristown, May 7th 1777.
[Notice that all the references date from 1775-1778, close to the year of Jefferson’s supposed resolution. Notice too that Washington never used the term “natural born citizen.” Only later, after Jay’s introducing him to it, did Washington know it meant a citizen superior to a native born citizen, for whom his preference was great when it came to serving him. The point is: why is it difficult to believe, given his outspoken, yet secret, need to have native born citizens surround him, that he, like Jay, might have wanted a natural born Citizen, one born in America of two American citizen parents, to occupy the most powerful office in the land?]
In my eBook I composed a large table of which the following is a small part. :
Table VI
Exposure of Congressmen to “Natural Born Citizen” or “Natural Born Free Citizen”
State & Member
1777 Second Continental Congress
1787 Constitutional Convention before
July 25
1787 Constitutional Convention after
July 25
1790 U. S. Congress
Virginia
Mann Page
Thomas Nelson, Jr
Richard Henry Lee
Joseph Jones
Thomas Jefferson
John Harvie
Benjamin Harrison
John Blair
James Madison Jr.
George Washington
George Mason*
James McClurg*
Edmund J. Randolph*
George Wythe*
Mann Page
Thomas Nelson, Jr
Richard Henry Lee
Joseph Jones
1775-1776 (not 1777)
John Harvie
Benjamin Harrison
No
No
No
No
No
No
No
No
No
No
No
No
No
No
John Blair
James Madison Jr.
George Washington
George Mason*
James McClurg*
Edmund J. Randolph*
George Wythe*
No
No
No
No
No
No
No
John Blair
James Madison Jr.
George Washington
George Mason*
James McClurg*
Edmund J. Randolph*
George Wythe*
No
No
No
No
No
No
No
No
James Madison, Jr.
No
No
No
No
No
William Grayson
John Walker
Richard Henry Lee
Alexander White
John Brown
Andrew Moore
Richard Bland Lee
Isaac Coles
John Page
Josiah Parker
Theodorick Bland
Samuel Griffin
Stevens Mason
Henry Tazewell
Robert Rutherford
Joseph Neville
Francis Preston
George Hancock
Isaac Coles
Abraham B.
Venable
Thomas Claiborne
William B. Giles
Carter B. Harrison
Josiah Parker
John Page
Samuel Griffin
Francis Walker
James Madison
Anthony New
Richard Bland
Lee
John Nicholas
John Heath
Obviously, George Washington was not in the 1790 Congress. Dr. Conspiracy states Washington signed the act, obviously in his capacity as President though Dr. Conspiracy neglected to make the distinction. Do you agree that, since he was not sitting in the Congress, he did not know firsthand what went on? Please answer. You won’t allow my assumptions that persons closely bound to each other in friendship or ideology would inform each other of anything that was not expressly recorded. Therefore, you cannot conclude Washington knew what went on—Axiom 6.
My explanation is:
Two delegates attended the 1777 Continental Congress and the 1790 U. S. Congress.
Fourteen delegates attended the 1787 Constitutional Convention after July 25, 1787 and attended the 1790 U. S. Congress. Five delegates attended the 1777 Continental Congress, the 1787 Constitutional Convention after July 25, 1787, and the 1790 U. S. Congress. The number exposed to “natural born Citizen” and “natural born free Citizen” totaled twenty-one. The 1790 First Congress (which included twenty members who had been delegates to the Constitutional Convention, eight of whom had been members of the Committee of Eleven that drafted the “natural born Citizen” clause at the behest of George Washington) passed the Naturalization Act of 1790 (1 Stat. 103, 104). The number not exposed in those sessions totaled seventy-two. I deduce that the vast majority not exposed were responsible for passing the 1790 act with natural born citizen in it because (1) they followed the British paradigm in that they believed they possessed the power to redefine the American Constitution by mere legislation like Parliament could do to the British Constitution and (2) they had read Vattel’s 215, three sections farther on from 212. 215 in Sturges’ 1787 Dublin edition read:
It is aſked, whether the children born of citizens in a foreign country, are citizens? The laws have decided this queſtion in ſeveral countries, and it is neceſſary to follow their regulations. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (. 212.); the place of birth, produces no change in this particular, and, cannot, of itſelf, furniſh any reaſon for taking from a child what nature has given him; I say “of itſelf,” for, the civil law, or politics may order otherwiſe, from particular views. But I ſuppoſe that the father has not entirely quitted his country in order to ſettle elſewhere. If he has fixed his abode in a foreign country [the right to expatriation], he is become a member of another ſociety, at leaſt as a perpetual inhabitant; and his children are ſo too.
This shows the likelihood that the unexposed part of the Continental Congress incorporated two conflicting philosophies in their thought processes to draft the 1790 act.
It might be noteworthy to demonstrate that Vattel believed in ranks of citizens. 213 read:
The inhabitants, as disſtinguiſed from citizens, are ſtrangers, who are permitted to ſettle and ſtay in the country. Bound by their reſidence to the ſociety, they are ſubjeƈt to the laws of the ſtate, while they reſide there, and they are obliged to defend it, becauſe it grants them proteƈtion, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws, or cuſtom gives them. The perpetual inhabitants (see 215) are thoſe who have received the right of perpetual reſidence. Theſe are a kind of citizens of an inferior order, and are united, and ſubjeƈt to the ſociety. Without participating in all its advantages. Their children follow the condition of their fathers; and as the ſtate has given to theſe the right of perpetual reſidence, their right paſſes to their poſterity.
Dr. Conspiracy believes the following statement disproves “striking” natural-born citizens based on the motive to replace the term with citizens.
“The evidence does not support specific striking of the phrase ‘natural born citizen.’ The 1790 act was repealed in its entirety and a replacement Act was written in 1795. There is no record in the debate of the phrase ‘natural born’ being discussed, much less stricken and the sentence in the 1790 Act that contains the phrase ‘natural born was not simply copied into the replacement 1795 Act with the phrase deleted. See my article: ‘The Naturalization Acts of 1790 and 1795’ for the text of both acts." “No record?” So government is always transparent? Secrecy is never imposed? I have inserted in my eBook many quotes of founding fathers speaking out against secrecy. Axiom 3 has always been in play.
I reproduced both acts in my eBook too. Compare them.
The act was altered slightly and entered into the Journal of the First Congress, Sess. II Ch. 3 1790, March 26, 1790, p. 104 as:
“An Act to establish an uniform Rule of Naturalization
SECTION 1. Be It enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the states wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the constitution of the United States, which oath or affirmation such court shall administer; and the clerk of such court shall record such application, and the proceeding thereon; and thereupon such person shall be considered as a citizen of the United States. And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, That no person heretofore proscribed by any state, shall be admitted a citizen as aforesaid, except by an act of the legislature of the state in which such person was proscribed. (a) [This clause proved that the federal government bowed to the jurisdiction of state governments with respect to immigration.]
Approved, March 26, 1790.”
The Naturalization Act of 1795 read:
“An Act to establish an uniform Rule of Naturalization; and to repeal the Act heretofore passed on that Subject. For carrying into complete effect the power given by the constitution, to establish an uniform rule of naturalization throughout the United States [nothing about immigration];
SECTION 1. BE it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise. First, he shall have declared, on oath or affirmation, before the Supreme, Superior, District, or Circuit Court of some one of the states, or of the territories northwest or south of the Ohio River, or a Circuit or District Court of the United States, three years at least before his admission, that it was, bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whereof such alien may at that time be a citizen or subject. Secondly. He shall, at the time of his application to be admitted, declare on oath or affirmation before some one of the courts aforesaid that he has resided within the United States five years at least, and within the state or territory where such court is at the time held, one year at least; that he will support the Constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever and particularly by name the prince, potentate, state, or sovereignty whereof he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court. Thirdly. The court admitting such alien shall be satisfied that he has resided within the limits and under the jurisdiction of the United States five years. It shall further appear to their satisfaction that during that time he has behaved as a man of a good moral character, attached to the principles of the Constitution of the United States, and well-disposed to the good order and happiness of the same. Fourthly. In case the alien applying to be admitted to citizenship shall have borne any hereditary title, or been of any of the orders of nobility, in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility in the court to which his application shall be made; which renunciation shall be recorded in the said court. [This requirement intended to make sure that the alien was willing to give up his allegiance to the foreign country that had bestowed his title. The framers wanted no emergence of an American aristocracy, still another reason that they deviated from British statutory and common law.] . . .
SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States. No person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted as foresaid, without the consent of the legislature of the state in which such person was proscribed. [States’ rights still existed to counteract the immigration of a particular naturalization under the limited powers of Congress.]
Aren’t these two acts very similar in their corresponding sections? It seems Dr. Conspiracy claims they are different, except for the huge leap of faith that the term citizen meant natural-born citizen. Actually he comes out and says this in his article: “This would imply to me that the Congress intended that ‘natural born citizen[ship]’ means the same thing as ‘citizenship’.” I adamantly disagree. One act is fuller than the other and has incorporated substantive new language. I claim the two main differences are the number of years of residency and the natural-born citizen disappearance. By underlining the first sentence of the 1795 Section 3 in his article on the two acts, Dr. Conspiracy makes the inference that citizens means natural-born citizens. Citizen as a requisite in the Constitution for Representatives and Senators means naturalized or native-born citizen. Why was the President’s requirement differentiated? The framers always applauded plain English. It was differentiated with natural-born citizen because natural-born citizen was not the same thing!
Dr. Conspiracy repeats his belief in the following section of his article:
“If this is the case, then the Act of 1795 equivalent section:
, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States.
is different because the wording a bit tighter and recognizes the superfluous phrase “natural born” (which is understood from the fact that they are born citizens).”
Superfluous? That’s not the equivalent conjecture he constantly construes to me, which he belittles me for? This is not the first time. Why couldn’t the provision indicate that fathers had to be former residents in the United States to exclude territories thereof? This is one of my points with John McCain. Read old history books. Our founders recognized the possible claims of the original states with “claimed” territories to the west of them but they never stated that those territories were inside state boundaries. As you all know, those territories basically ended up different states. I view Dr. Conspiracy’s analysis as unadulterated conjecture.
Dr. Conspiracy said, “All of the material on ‘Natural Born Citizen’ on pages 15875-15880 is the essay included under the name of that single House member. “ Hold on. Are you saying the following Representatives did not give oral input? Mr. Vigorito (Joseph Phillip Vigorito, [November 10, 1918–February 5, 2003] was a Democratic member of the U.S. House); Mr. Bingham of Ohio (who also at another time “during a debate [see pg. 2791] regarding a certain Dr. Houard, who had been incarcerated in Spain, the issue was raised on the floor of the House of Representatives as to whether the man was a US citizen.)”; and Mr. King of California (The SPEAKER pro tempore. Under a previous order of the House. The Chair recognizes the gentleman from California [Mr. King] for five minutes) were not vocal contributors to the discussion, which actually was a discussion in contrast to your belief that strictly written evidence was entered into the Record?
Mr. Vigorito did not say, “Mr. Speaker, I ask unanimous consent that the gentleman from Texas [Mr. Dowdy] may extend his remarks at this point in the Record and include extraneous matter.” Dr. Conspiracy, did the quotations from Vigorito, Bingham and King in the Record all came from Dowdy? If that be true, then I admit to being confused and I will change my wording to reflect that. Otherwise, I suffer not from “utter and complete fantasy.”
“Moving on, Bob says:
It is clear that under the English common law this term ‘natural born’ meant ‘native born’
I think that it is more accurate to say that “under English Common Law, persons born in the Country are natural born.” In fact, British subjects born outside of the country were also “natural born” according to several statutes.”
You are not reading my eBook or you haven’t read much of it; otherwise you would have come across Plowden and all the information I inserted with reference to the varying definitions of natural-born subject. You are right about “If one takes the Common Law term as a definition (“means”) then we have the Common Law contradicting statutory law.” This and other common situations like it formed the basis for needing English explanatory and declaratory acts. Have you read Francis Plowden’s book An Investigation of the Native Rights of British Subjects published in London in 1784 and his next book A Supplement to the Investigation of the Native Rights of British Subjects published in 1785?
“The only non-contradictory way to read this is that ‘natural born’ means ‘from birth’ and under Common Law.” The definitions of natural-born citizen and natural-born subject were contradictory outside native-born from the use of natural-born citizen in the Constitution.
Subsequently from Calvin’s Case, the Brits passed statutes giving children born abroad of British fathers the rights of natural-born subjects. You will never find that they were given all the rights and Britain always recognized that the effective naturalization did not make them actual natural-born subjects. That’s a big difference. The same is true in America. You cannot make a naturalized citizen into a native-born citizen. Show me otherwise.
“Bob impeaches himself by arguing two wholly contradictory positions. One cannot simply say that the interpretation of the Constitution is the plain language that wasn’t plain to anybody but an elite group that Bob imagines believed it.” It was plain to many but judges had agendas. You seem to think that politics is a relatively honest profession. I beg your pardon . . . not then, not now.
James Kettner faced the same kind of audience that I face now. You feel that he could start out by writing that the concept of citizen envisioned by Americans had evolved differently from the concept of subject envisioned by Englishmen and later still harmonize the two without some hidden motive. I don’t. It was obvious that he started off with the idea of two ideologies and then regrouped with those who taught our natural-born citizen came from British roots. Ask yourself one question—would he have received the Jamestown Prize from the Jamestown-Yorktown Foundation in 1975 if he had contradicted popular thought among academicians? You always accuse me of not being academic. Go back and see what happened at the Academy Awards to motion pictures that expressed support for unpopular American wars. Would they have won more awards had they been less right of center? Would Obama have received the Nobel Peace Prize had he endorsed the Iraq war and not snuggled up to Islam? What action other than his opposition to this war and his cuddling up to Islam could have possibly warranted that prize? This is an instance of honoring appearance over substance. In the end, the Norwegians didn’t get their money’s worth. Obama is serving up drone bills of attainder. Is that peace-loving?
You did notice that in my answer to your question about who determines whether Obama is eligible I left out the Supreme Court. Why did the Supreme Court quash cases against Obama’s eligibility? I cannot say that it was because they respected their limitations for the first time in two centuries. They have no right to determine what natural-born citizen means. History is the best means of determining the meaning. The history I have brought to light shows why “natural-born citizens” found its way into Vattel. I show Vattel to have had a great influence over colonial America. Can Dr. Conspiracy reconcile those two facts?
“Teddy Roosevelt,” Dr. Conspiracy points out, “commented about one of our Presidents, Chester A. Arthur, whose father was Irish at the time that the President was born, saying that if President Arthur had traveled to England, he could have been drafted into the British Army. Roosevelt thought that claims of foreign countries on US-born children were anathema to American ideals.” None of you will agree, but Arthur in my view was stopped by his own party from being “nominated for the Presidency” for the first time (he gained office by the fact that his president was assassinated.) The party doubted his natural-born status. Why did the following Vice-Presidents serve out part of their predecessor’s term and win subsequent re-election in their own right: Theodore Roosevelt, Calvin Coolidge, Harry S. Truman, and Lyndon Baines Johnson? Chester Alan Arthur, twenty-first president of the United States, was born on October 5, 1829 in North Fairfield, Vermont, the child of Malvina Stone and William Arthur. He had a citizen mother the same as Barack Obama. And he was born in America. He burned his papers. Why? Why does Obama deny us access to his original birth certificate?
“I reject the words ‘unquestionably’ and ‘defined’ as begging the question, but as for the plain question of how many US Presidents born in the US since the adoption of the US Constitution had two citizen parents, I’m not sure. It’s ‘at least two.’” Good. By the way, throughout my eBook are shown the positions of our forefathers and public jurists on dual citizenship. Most were against it. When was it recognized? Much later. Did Ballantine come up with court cases about Americans impressing British sailors born of American mothers and British fathers yet?
“The first problem with that argument is that Bob just makes up the claim that there were this great multiple of potential presidential candidates with foreign parents. We have had 36 Presidents of the United States born since the ratification of the Constitution. If the number with a foreign parents is 2, then a little over 5.5% of US Presidents had one or more foreign parents.” You produced statistics from 1920 to 2010 for non-citizens in the US. I found that between 1860 and 1910, between 13 percent and 15 percent of people in the US were born somewhere else. I believe that is a better statistic because I said, “There were multitudes of native born citizens in those times with foreign parents or just one American citizen parent.” The one American citizen includes naturalized citizens. Why didn’t you reproduce those statistics? When I brought up http://www.fas.org/sgp/crs/misc/R41592.pdf, I found that according to the Census, these were the statistics for foreign born: 1920, 13.2%; 1930, 11.6%; 1940, 8.8%; 1950, 6.8%; 1960, 5.4%; 1970, 4.8%; 1980, 6.2%; 1990, 7.9%, 2000, 11.1%. Quite a discrepancy. So you felt it was O.K. to produce solely statistics for non-citizens, which are only those foreign born who haven’t been naturalized. Then too, you ignored the number of American citizens born of two American citizens. A reasonable percentage of them must be included because they marry foreign-born, non-citizens too.
In its lifetime, the U.S. Census has never come close to counting the number of illegals in America, which means the Census has never come near predicting how many native-born citizens may be eligible for the presidency according to Dr. Conspiracy’s definition of natural-born citizen. My words have been skewed. I believe that “instinct” in the American electorate has been the reason why only two non-natural-born citizens by Jay’s definition have been elected to the presidency. It can’t be knowledge beyond a shadow of doubt because the term natural-born citizen was not defined in the Constitution as Dr. Conspiracy well knows.
The government recognizes 11 to 12 million illegals today. They don’t normally answer census questionnaires. Multiply their procreation by just 1.5 potential children each, the number of potential presidential candidates becomes a minimum of 16.5 million more. The percentages change. You won’t be surprised to hear I think 12 million illegals is a drastically low estimate.
Again into the breech.
I decline to address John Robert’s decision on Obamacare as lacking any relevance to this discussion. First, Bob has rejected any modern judicial authority in total, and I have not made any argument based on it, although by rights I could. Whether Roberts made a good or a bad argument has no bearing on whether someone else made a good or a bad argument historically on another topic. If we are discussing the question of judicial review, we should be talking about John Marshall, not John Roberts.
As to the appearance of “natural born citizen” in the 1790 act and its non-appearance in the 1795 and subsequent acts, the historical record is silent. I can certainly make, and have made, the argument that “born a citizen” and “natural born citizen” are equivalent phrases, and one might appear in one place, an the other in another without requiring an explanation of which is chosen. To attribute significance to one or the other is to beg the question that they are different. George Washington signed them both and James Madison was in Congress when both were passed.
In the response preceding, Bob still tries to turn McElwee’s essay into authority by adding, without justification, attribution to the House of Representatives. In subsequent emails on this subject, I think Bob may be coming round to realize what he is reading. In fact, Congressman Dowdy put the McElwee essay into the record and the next thing that happened was another Congressman added a report on Medicare into the record. I myself have watched a largely empty House and Senate function where a member comes in, asks that something be inserted into the record and then leaves, nothing having been read and nothing having been heard. That seems to me to be the context of the McElwee essay.
Struggling mightily to create discussion and consensus in the House which never happened, Bob says:
Mr. Vigorito does not discuss “natural born citizen,” Mr. Bingham talked about travel restrictions to Israel and Mr. King talked about Medicare. So this was not in any shape or form a discussion of “natural born citizen.” The fact that the speaker before Dowdy and the one after him are in the excerpt and are ABOUT SOMETHING ELSE proves that no discussion of “natural born citizen” was being carried out at that time.
I might add that McElwee makes, it appears, an error similar to Bob in that he asserts that James Madison had the phrase “natural born citizen” removed from the 1790 Act because of its implications for the qualifications of the President. However, he cites no historical evidence that this ever happened, and it appears that he just made that up, believing that it had to be true in order to remain in line with his views that George Romney couldn’t be President.
Then Bob talks about this “secrecy code.” He says:
In fact, the members of the Federal Convention of 1787 did pledge to keep their deliberations secret until they had finished their work. But afterwards, the notes of the Convention were published, along with Madison’s Notes and much correspondence, preserved for us in Max Farrand’s volumes. Bob, however, invokes a further secret plot to hide the definition of natural born citizen. Basically Bob is using a “the dog ate my homework” argument to explain why on one in early America is recorded as having agreed with him.
Bob asks:
Not without some evidence.
Bob says:
I reject the idea that Bob can make up whatever cock and bull story he wants to and then expect people to believe it because the evidence for it is a secret. That “axiom” works just as well to deny the moon landing as it does his theories. When one side of the debate says: it’s true but all the evidence is hidden, secret, and everybody is lying and covering up; that signals the time back away slowly making no sudden movements. Let me answer this flurry of questions by inserting answers in bold face:
Bob says:
Mr. McElwee made an unsupported assertion. He attempted to cast doubt, but he failed at that point for lack of evidence.
Bob then goes to a list of citations from George Washington regarding a preference for “natives” in the matter of loyalty. There have been some problems with authenticity of SOME Washington quotes, so I am not necessarily accepting or rejecting them. The problem with those Washington quotes is that the people Washington called “American born” or “natives,” were people who were born British subjects in British Colonies with British Subjects for parents. I fail to see how one gets from “native born” to “two citizen parents.” Barack Obama would have fit Washington’s criteria. Bob says:
True or not, can Bob cite any instance where anyone born a citizen of the United States prior to 1840 was called a “foreigner?”
Bob then produces a bit from a massive table from his book, the purpose of which I do not fully understand. He purports to document when various individuals were first acquainted with the term “natural born citizen” but what he really shows is the first time Bob has been able to document that they were part of a body where it appeared. So I fail to see what possible meaning this compilation could have since it’s compilation has no relationship to what its title asserts. Bob follows that with:
Well, duh. Do I have to explain that George Washington was President in 1790 and not a member of Congress? But the point is that Washington assented to the act by signing it. Bob keeps shoveling evidence aside. Washington signed the act, but that doesn’t matter because he wasn’t in Congress. Madison was in Congress but he let the act slip by to keep the secret that the whole country was led to ratify a Constitution that he and a few cronies knew the meaning of. Bob makes up bizarre conjectures to explain away the fact that signers of the Constitution in 1790 were perfectly happy to have “natural born citizen” (raising no documented objection) but felt they had to remove it in 1795 (with Madison was still in Congress and Washington was still President).
Moving on Bob says:
Bob, explain why you hold a view that you have no evidence for. The President and the Vice President have the same qualifications of eligibility. Arthur didn’t run for re-election because he was fatally ill.
Skipping a bunch of stuff.
No, it doesn’t surprise me one bit that you believe that.
Now we’re talking. This was a wonderful response. . . very objective. I am in total agreement. However, one cannot totally dismiss arguments in McElwee because he might have been biased as well as the man that introduced his essay.
The little bit I inserted about Chester Arthur is not all that I have. A discussion about him is destined for Part II. Notice how I can use "discussion" pertaining to a future eBook without the word being illegitimate because the discussion will have no responses.
"A lawyer defending his client is also going to try to sway the jury by emphasizing what’s good for his side and sweeping under the rug what is bad." Correct.
This very much pertains to our debate. You claim I can’t use positive statements regarding my analysis of the circumstantial, corroborative and correlational evidence I present. In fact, many times you won’t allow me to apply these adjectives to my evidence without rampant objections and accusing me of making up stuff. You completely dismiss such evidence because I have no smoking-gun proof. Have you ever heard a prosecuting attorney of an accused murderer in a case with very little concrete evidence say in his closing statement or argument, “This is the point where the enraged defendant took his thirty-eight out of his nightstand drawer—the murder weapon is missing but we know it was a thirty-eight because a thirty-eight slug was recovered from a steel stud behind the bedroom wall, unfortunately so distorted that ballistic identification could not be certified, but that is of no concern because we know the defendant owned a Smith and Wesson 38 snub nose. . . etc.?” You get the gist. I claim the right of a prosecuting attorney when I present my case and I claim the right of a juror when I listen to your case.
There is a fundamental problem between us which has to do with the nature of all our evidence. In part it may also have to do with the truth of Francis Plowden’s: “The mind of man is naturally open to prejudice: for every one is readier to decide, than to examine; and it rarely happens, that the feelings of individuals do not direƈt their judgments. Thus prejudices often generated into paſſion, are handed down to the lateſt poſterity; and no tradition is ſo blindly received, as that, which is founded on prejudice. When a perſon has thus received a prejudice, his reaſoning is uſually direƈted at ſtrengthening and juſtifying, rather than inveſtigating the grounds of his belief.”
You have never conceded that the meaning of “natural-born citizen” is impossible to prove without possible error. I would feel comfortable with all your defenses against my conclusions if you would at least acknowledge that have you not presented any smoking-gun proofs. On several occasions, I have admitted that I was either partially wrong or had selected the wrong words. In my eBook I called myself a fool twice. I looked forward to your attacks on my facts because I wanted to improve my eBook. I didn’t want your ridicule. You have not admitted your fallibility on any of your arguments. If you have and I have forgotten, please forgive me. No one can be right 100% of the time.
"When looking at historical sources, one has to consider the agenda of the writer. Not all wrote with academic disinterest." Hardly anyone did. But some with unbelievable distortions. Have you ever read the works of various historians compiled and edited by Eric Foner under the title The New American History? I think Gore was the ghost writer for most of them and he was on an ice rink with his hockey stick in hand at the time.
I tried to be objective as I possibly could in my eBook. For almost every citation you or your contributors have come up with from the 18th century, except for the two naturalization acts using natural-born citizen, I already had them in my eBook. I think that shows objectivity.
In a message dated 2/19/2013 3:19:37 P.M. Pacific Standard Time, [Dr. Conspiracy] writes:
I think we would all agree that a reasonable degree of certainty can come from circumstantial evidence. In your example one can determine that someone was shot by a 38 because the bullet hole is of that size. That more or less works. However, I would not agree with reasoning that says: the victim was shot by a 38 because the accused was in possession of a 38 but the coroner is keeping the autopsy results secret. I find Bob’s use of circumstantial evidence to be more like the latter, creating events in order to arrive at the desired conclusion. Normal circumstantial evidence would say that someone had a motive for killing the victim because they had a heated fight shortly before, only Bob would say that that there must have been a fight even though no one will testify that they saw the two together, because it had to have happened to provide motive for the motive in order to prove the accused is the murderer all the witnesses are trying to shield the accused.
Bob justifies his use of circumstantial evidence because he says that no one has a smoking gun on their side.
What about Rawle? A personal friend of Washington and Franklin, a noted jurist and lawyer, a historian of the first rank and the author of the first great work on the Constitution. He said:
How can Bob excuse not mentioning Rawle’s quote in 1721 pages?
Bob uses the language of mathematics to describe his argument, only he generally argues by analogy rather than deduction. I have a master’s degree in mathematics, and I do not ever recall any instance of circumstantial evidence being used to prove a mathematical proposition, but let me tell you how I read Bob’s axioms (in boldface) and how I think he uses them:
Axiom 1. Because authors do not define the definitions of new terms they use does not mean that they do not know what they mean in their own minds.
Because authors in rare cases do not define the definitions of new terms they use, Bob has a license to assign his own definitions as needed. Note: generally authors define new terms.
Axiom 2. Because authors use terms in a different way than defined in dictionaries does not mean that such terms used in the authors’ books have the dictionary meaning.
Because authors in rare cases use terms in a different way than defined in dictionaries, Bob has a license to ignore the usual definitions of words and substitute his own. Note: Usually authors use terms the same way as everybody else does, and consistently with dictionary usage.
Axiom 3. Political secrecy causes blurred gaps in the histories of all countries.
So any time evidence is lacking, Bob can invoke secrecy and substitute his own ideas. Note: Political secrecy doesn’t usually come in to play in legislation, and if it does, such secrecy doesn’t last past the current generation.
Axiom 4. Conspiracy distorts written history.
Bob can discard the written history by invoking a conspiracy. Note: usually history is not the result of secret conspiracies.
Axiom 5. Lawyers parse words.
Bob has a license to interpret words for lawyers in unusual and idiosyncratic ways. Note: Usually lawyers say what they mean.
Axiom 6. Political analysts must apply the same logic to both sides of any political dispute in order to be fair and consistent.
One can use an unrelated analogy to prove a point, for example John Roberts making a poor argument on a Constitutional question (assuming that happened) implies that no Supreme Court is competent to rule on a Constitutional question. Corollary: Bob’s opinion is as valid as anyone else’s. In practice, Bob violates his own axiom by making discarding evidence he doesn’t like based on a contextual argument, while ignoring context in his own sources, and essentially accepting as an authority anyone who agrees with him, ignoring their biases and agenda.
Axiom 7. Those that accept substantiated correlations to prove conclusions that suit them must accept substantiated correlations to prove conclusions that don’t suit them if they are to retain their integrity and fulfill Axiom 6.
All appeal to correlations are equally well-founded and all alleged correlations are equally valid.
Axiom 8. Different languages often have words translatable to each other’s language from the same roots but with substantially different meanings, such that in many cases there is no such thing as a perfect translation.
Bob gets to pick and choose a translation that suits him. Usually, a good translation is possible.
Axiom 9. Different cultures can have the same dictionary meanings of words but different connotations based on cultural teaching and tradition.
Bob gets to pick and choose a translation that suits him.
Axiom 10. Translators can make poor translations by error or manipulate translations according to an agenda, either of which can change history.
Bob gets to pick and choose a translation that suits him.
Axiom 11. Perfect translations are rare.
Bob gets to pick and choose a translation that suits him or ignore translated material he doesn’t like. Note: good translations are common.
Axiom 12. The structure of a language at times makes it impossible to translate perfectly.
Bob gets to pick and choose a translation that suits him or ignore translated material he doesn’t like. Note: good translations are common.
So rather than Axioms which help achieve mathematical precision, these axioms are designed to make inferences based on general rules that in fact only occur in rare circumstances, allow one to reject competence and authority, allow one to revise the historical narrative as needed (to remove alleged distortion), and give the user the greatest possible latitude to rewrite the evidence to fit the desired conclusion. They are an assertion that “I can define the words my sources use in ways that suit me; I can translate text to suit me; I can invoke secrecy and conspiracy any time the facts don’t fit; and I can argue by analogy whether valid or not.
I believe the relevant phrase is “garbage in, garbage out.”
I had a little time to go back to the kibitzer 2 thread and saw it was cut off. One of the last fellows, Reed, quoted Madison out of context. “It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States; it will, therefore, be unnecessary to investigate any other.” He was talking about citizens.
Here’s the citation in my eBook:
Another expert in citizenship, Rogers M. Smith, who wrote Civic Ideals, also recognized the inherent malaise of clarifying the principles related to citizenship. “But the colonists were far more bitter at the suggestion that Native Americans and free Africans might also be British subjects, a bitterness increasingly expressed in racial senses of their own identity. To flourish, most British colonists felt that they had to dispel the tribes and enslave Africans. Any suggestion of political equality was therefore anathema to them. Indeed, they needed myths of their own superiority.” Smith, like almost everyone else in today’s world, succumbed to the belief that the answer to the meaning of natural-born citizen lay in common law, but he neglected to tell us which common law:
The undebated provision that the President be “natural born” was, however, again ambiguous. As Madison observed in 1789, there were two conceptions of citizenship by birth available to the framers. Birth derived its “force” as a “criterion of allegiance . . . sometimes from place,” as in the common-law tradition of jus soli expounded by Coke and Blackstone, and “sometimes from parentage,” from birth to one or more citizens, a position known as the jus sanguinis and endorsed by Vattel and Burlamaqui. Although these international law writers [jurists of the law of nations] based membership on “mutual consent,” they developed the non-Lockean [now Smith agrees with me—confusing] view supporting birthright citizenship, perhaps out of concern about the impracticality of Locke’s insistence that children were not members of any political community. They tried to obtain the advantages of older naturalistic views of membership [law of nature] by arguing that children should be treated as provisional members of their parents’ society, who were guaranteed the optimum of full membership at maturity if they so chose. [Right out of Vattel’s . 212.] The Swiss writers [meaning Vattel primarily] traced this guarantee to hypothetical consent, arguing that parents “are supposed to have stipulated” that their children have this option as a condition of their own membership. Burlamaqui stated that children could thus gain citizenship “in the place of their parentage, or in their native country”—unclear phrasing that might suggest both citizens and resident aliens obtained this option for their children. Vattel said that children of resident aliens should be guaranteed only the status of their parents.[After such statements, how could Smith have stated his belief that that “The eighteenth-century Swiss international law writers Jean-Jacques Burlamaqui and Emmerich de Vattel, whom the revolutionaries also cited, built on Locke to argue for even broader expatriation rights. . . ?”]
In the eighteenth century, most writers saw this international law view of birthright citizenship, the jus sanguinis, as more consistent with consensual principles than Coke’s feudal view of jus soli. But in keeping with the nativistic tone of debate over these clauses, and not with the Constitution’s predominant liberal republicanism, it was almost certainly the common-law criterion of place of birth that the delegates meant to install in Article II, as Madison later asserted. It thus perpetuated the older view of “natural” civic membership in a way that conformed to xenophobic sentiments.[Madison also expressed his belief that birth could result in a kind of dual allegiance, first to the country of birth and second to the sovereign of that country. Smith’s handling of Madison’s concept was a fuzzy relationship between jus soli and jus sanguinis, especially since he did not relate the situation to out-of-the-country birth that would be the reason to mention the sovereign.]
Naturally, I disagree with Smith’s interpretation of natural-born citizenry as xenophobic. It is illogical to consider the requirement of one office in the United States that excludes native-born citizens and naturalized citizens as xenophobic. I call it good judgment. And frankly, I have never seen where Madison clarified anything about the term “natural-born citizens” except by inference with his deletion of it. The “proof” that Smith gave to substantiate his belief that Madison believed that the common-law criterion of place of birth for natural-born citizen in Article II is the following:
“Citizenship”
[22 May 1789]
[The proposition concerned whether or not the election of William Smith of South Carolina to the House was invalid based on questions regarding his citizenry [understand this Reed—citizenry, not natural-born citizenry], as argued by David Ramsay. The fact that the dispute had nothing to do with natural-born citizenry should give the clue that this is not a good argument to use in the context of natural-born citizenry. Unlike Smith, I will turn it into a good argument by using my reasoning. Mr. Madison spoke:]
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. Mr. Smith found his claim upon his birthright; his ancestors were among the first settlers of that colony. [Ask yourself the same question as always—if native-born, jus soli, is the established maxim for allegiance and the most important factor in running for the Senate and the House is birthplace allegiance, accepting that naturalization, the lesser form of allegiance is also allowed, then what is “natural born Citizen” if it isn’t a higher form of citizenship? I truly believe that every thirteen-year-old should be able to answer the question without much thought. Fortunately for American teachers, the question of what is a natural-born citizen is not included in any performance test for the students they teach since few teachers know the answer. Madison recognized jus soli as the only citizenship requirement for Representatives. He also mentioned jus sanguinis, parentage, as “sometimes” playing a part in citizenship. Where do you suppose jus sanguinis applied in American law? Did Madison forget to qualify his statement “but in general place is the most certain criterion” with “for everything except the presidency.” What say you thirteen-year olds, is the presidency open to foreign-born [sic] children [children born of foreign parents] made into regular citizens at birth or to anchor babies? You’re right! It isn’t. Birthplace allegiance was the most important aspect of allegiance, but wouldn’t you think the framers, including Madison, would desire that the requirement for the presidency be the highest form of allegiance—both birthplace allegiance and parentage allegiance, jus soli and jus sanguinis? What a coincidence! You thirteen-year olds are right again to say that both were required for the Presidency. Would you please pass the knowledge onto your parents?]
. . .
It is well known to many gentlemen on this floor, as well as to the public, that the petitioner [David Ramsay] is a man of talents, one who would not lightly hazard his reputation in support of visionary principles: yet I cannot but think he has erred in one of the principles upon which he grounds his charge. He supposes, when this country separated from Great Britain, the tie of allegiance subsisted between the inhabitants of America and the king of that nation, unless by some adventitious circumstance the allegiance was transferred to one of the United States. I think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary allegiance which we owe to that particular society of which we are members, and the secondary allegiance we owe to the sovereign established by that society. This distinction will be illustrated by the doctrine established by the laws of Great Britain, which were the laws of this country before the revolution. [I have shown this to be partially untrue since the colonies passed many laws in direct contradiction to Britain’s.] The sovereign cannot make a citizen by any act of his own; he can confer denizenship, but this does not make a man either a citizen or subject. In order to make a citizen or subject, it is established, that allegiance shall first be due to the whole nation; it is necessary that a national act should pass to admit an individual member. In order to become a member of the British empire, where birth has not endowed the person with that privilege, he must be naturalized by an act of parliament. [Madison knew that the Constitution did not provide for dual citizenship in any way. He must be rolling in his grave now because Congress distorted that fundamental tenet—though not expressly banned in the Constitution. I shall discuss dual citizenship at length in Part II.]
Mr. Reed, are you younger than thirteen? Let me repeat something I wrote: “This is how easily liberals confuse terms; such as natural-born citizen for native-born citizen, equality for egalitarianism, racism for disagreement in utterings between a white mouth and a black mouth, artificial entitlements for natural rights, intelligence for stupidity, and wisdom for cutesy, clever-sounding observations.”
What I have seen so far is that only a few of you have extensive knowledge like Dr. Conspiracy and Publius. The rest of you cling to what you think are little gems here or there, usually without understanding them in context.
Why is my eBook 1700 pages? Context!
I didn’t say, “. . . the coroner is keeping the autopsy results secret.” You are making up quotes for me again. I never said: “. . . there must have been a fight even though no one will testify that they saw the two together . . .” You have done exactly what you have accused me of. You put words into my mouth. I understand that you are forced to rush things, as am I. I don’t really think you intended to put words into my mouth.
“I have a master’s degree in mathematics . . .” Prove it with your transcripts and your name; otherwise you are a fraud and a liar according to the wise reasoning of all your contributors. You simply will not apply the same standards to yourself as to me. That is Axiom 6, not your twisted version. I used John Robert’s as one example to attack the notion that the Supreme Court should interpret what is in the Constitution. I did not use it to say that no Supreme Court is competent to rule on a Constitutional question, which includes “under.” The Constitution delegated to the Supreme Court such power as to rule on the constitutionality of a law legislated under the Constitution. You put words into my mouth again. I suspect this time intentionally.
With regard to Axiom 6,“Bob violates his own axiom by making [sic-I do this only to show that none of you are perfect writers] discarding evidence he doesn’t like based on a contextual argument, while ignoring context in his own sources, and essentially accepting as an authority anyone who agrees with him, ignoring their biases and agenda.” That is absurd when I had in my eBook almost all the evidence you used in your assaults, except the two state naturalization acts and evidence that I am going to put in Part II, which was announced in Part I. Deferring such evidence to Part II is not avoiding it based on contextual argument. The inference is illogical. There are no greater contextual violators than your contributors and you, especially concerning Madison’s quote. No one has apologized for trying to skew the meaning. The quote came as a part of an argument that was advanced over William Smith’s citizenship. It was not a singularly about allegiance as you purported.
What about Ballantine, who wants to ignore the massive evidence in context about America’s belief in voluntary expatriation before 1868? This principle was a crucial differentiation between natural-born citizen and natural-born subjectship. Every one of you wants to treat these two forms of citizenship as nothing more than a reflection of jus soli, ignoring the original definition developed by Lord Coke and the colonial evolution of citizenship in America, which drifted away from British natural-born subjectship.
Lupine wants to take the meaning of parens that suits him from French dictionaries where it can mean both parents or either parent without analyzing the term in the context of Vattel’s 212. Lupine takes the either parent definition, not translation. If Vattel meant either mother or father, he contradicted himself in the same section when noting that only the father was the one that passed on citizenship by jus sanguinis. If the mother passed it on too, Vattel was critically negligent by not citing her power to pass on citizenship. Vattel confirms, “The country of the fathers is then that of the children; and theſe become true citizens, merely by their tacit consent.” This statement would be totally incongruent with the belief of almost all your contributors that native-born [jus soli] is the only requisite for natural-born citizen. Lupine analyzes that “parens citoyens” means father or mother. If that had been Vattel’s intent, then what happens when the mother is a citizen of the country and the father is not? She can’t pass on the citizenship of the country in which her child was born because citizenship followed the father. Is not native or indigene in reference to citizenship or is this like Madison’s quote, all about allegiance? Most of you contend that natives and indigenes have an automatic right to citizenship by way of birthright.
Vattel wrote “born in the country of parents who are citizens.” He didn’t write specifically “who are citizens of the country.” One could linguistically argue that, since he didn’t specify, either parent could be the actual citizen of the country in question, which would be possible with Lupine’s insistence that parens citoyens can mean one or the other parent. If it only takes one to be a citizen, the other one could be a citizen of another country, in which case lawsuits and strife could arise. Vattel was clear that the father passed on the citizenship, making it impossible—using logic and common sense—to accept that the mother had any significance at all unless he meant that both parents being citizens of the country in which their child was born somehow benefited their child in some new way—a higher form of citizenship. The obviousness of this argument creates a dichotomy with respect to jus soli by itself or jus soli and partial jus sanguinis with reference to 212. Please don’t bring England into the argument because Vattel was not writing about England.
The good thing about seeing the criticism of my axioms by Dr. Conspiracy is that now I know he read at least one chapter in my eBook.
Dr. Conspiracy misunderstood Axiom 1. It means, applied to Vattel’s definition for natives and indigenes, that Vattel’s definition never found its way into a dictionary anywhere in the world. Show me a dictionary that defines native or indigene as a person “born in the country of parents who are citizens” or, if you prefer, the Lupinian translation, a person born in the country of a parent who is a citizen. Vattel knew what his definition meant in his own mind. No need to distort my axiom, Dr. Conspiracy.
Dr. Conspiracy misunderstood Axiom 2. It means that Vattel used native and indigene in “a different way than defined in dictionaries,” which means that none of you lawyers and judges can define Vattel’s definition by looking it up in a dictionary. You have to resurrect Vattel’s definition, which none of you have been willing to do and most of you deny the true meaning of.
Axiom 3 is a simple statement. “So any time evidence is lacking, Bob can invoke secrecy and substitute his own ideas.” No. “Conspiracy distorts written history.” Does anyone disagree? I would have thought that this axiom would have passed muster under the eyes of anyone with intellectual honesty. What did Rahm Emanuel say—Never let a good crisis go to waste? Dr. Conspiracy refuses to let an innocuous statement go to waste. There is definitely something Chicagoan in the site.
Axiom 5. Dr. Conspiracy seems to have perceived another crisis in this axiom. I reproduced Jay’s letter. I never claimed he used any term except natural born Citizen. With circumstantial evidence, I have proved beyond a reasonable doubt what his definition was. “Usually lawyers say what they mean.” Good for you! You always claim I defeat my own reasoning. Tell me: Does not this statement mean that Jay would have used native-born citizen if he had meant it? That’s correct; he didn’t mean it.
Perhaps I have misunderstood Dr. Conspiracy but it seems he didn’t object much to Axiom 7.
Dr. Conspiracy seems not to criticize Axiom 8, only me. “Bob gets to pick and choose a translation that suits him.” You pick native-born citizens to mean natural-born citizens. I choose not to pick this definition. A translation is a word, phrase, or text in another language that has a meaning equivalent to that of the original. I know what you mean, but how I can I keep letting you and others get by with criticizing me for every little error I make when I hardly return the favor?
Axiom 9. Repeat of Dr. Conspiracy’s flaw in Axiom 8.
Axiom 10. At least you got the concept correctly. I reproduced Vattel’s French as is. I don’t see how you can accuse me of choosing “a translation that suits” unless it is in the sole case of parens citoyen. I picked both parents. I did not manipulate the translation because two were valid. I picked the one that fit best. Lupine’s translation causes contradiction and confusion. Violators that manipulated translations were Patsall, Spelman and Eelbeck.
Axiom 11. Your logic disturbs me. First, I didn’t “ignore translated material.” I delayed covering it to Part II. Your logic is to harass me about having so many pages and then harass me for not including stuff that was not pertinent, in my opinion, until Part II. Also, perfect does not equal good.
Axiom 12. Perfectly does not equal good.
Here’s my answer to Dr. Conspiracy’s ending commentary. “Though you will find that public jurists writing about the laws of nature and nations often cloathed their self-evident truths with the term ‘maxims,’ which have the dictionary definition of general, fundamental principles, or rules of conduct, I chose to use the word ‘axiom’ for two reasons. First, I have already introduced the use of a mathematical axiom and second, except for one of my axioms, my self-evident truths do not have as much relation to rules of conduct that the maxims of philosophers and jurists do, which is the main difference between maxims and axioms.” Political scientists have used both terms and frequently make determinations linked to the adjective “axiomatic” and the adverb “axiomatically.” You didn’t seem to criticize the content of my axioms as much as you criticized the developer—the essence of liberal debate. I would like to consult Bill Clinton on the definition of garbage, though. Maybe you didn’t mean what I think you mean and I don’t need to take offense.
Great Debate closing statement from Dr. Conspiracy:
I want to thank Bob Gard for participating in this debate about his book and for being such a good sport; I know it must be hard to be the recipient of so much criticism, not all good-natured.
Bob Gard intuited a meaning to the US Constitution’s qualifications for President of the United States when he was in the 8th grade. Lacking any evidence whatever to support it, he lost the argument with his Civics teacher. Bob is not one to give up. After a year’s effort and $40,000 in expense for rare books, Bob thinks that he has finally found evidence to justify his intuition, and published a 1,721-page tome with that argument that Barack Obama is not eligible to be President, proven beyond a reasonable doubt.
Normally one would dismiss out of hand a reinterpretation of history by an uncredentialed researcher who comes to conclusions contrary to all the Constitutional scholars and jurists who have commented on the question. However, dismissing things out of hand is not what we do here at Obama Conspiracy Theories.
Bob wrote a set of 12 “axioms” to guide his research. Rather than being generally-accepted principles for good research, his axioms are more of a conspiracy theorists’ manifesto, saying that things are not what they appear, that secrets govern events, words have hidden meanings, and allows that even the US Constitution is a plot to deceive.
Bob’s story starts with John Jay who wrote a letter to George Washington at the Federal Convention of 1787 that drafted the Constitution. In that letter Jay suggested that the commander in chief be a natural-born citizen. Bob believes that not only is this suggestion the impetus for such language in the Constitution (which it may well be), but that Jay invented the term and that he owns the definition for all time. Jay himself never defines the term in his letter to Washington, except to say that it was not a “foreigner.” Nonetheless, Bob Gard believes that Jay’s actual definition was “someone born in the country to two citizen parents.”
I have written two articles, the first, “Farmer v. Framer,” showing that the phrase “natural born” in general usage at the time of the ratification of the Constitution simply meant a quality at birth, so that natural born citizen would be a citizen at birth—clearly someone who was not a foreigner, and I also showed that this was the legal definition based on English Law. In the second article, “The Framers on ‘foreign influence,’” I showed that in the debates of the Federal Convention, the concerns about foreign influence dealt solely with naturalized citizens.
So here we note the lack of “smoking guns” for Bob’s thesis:
Bob relies on Chapter 212 of Book 1 of The Law of Nations by Emerich de Vattel for his definition of “natural born citizen.” English translations of Vattel contemporary to the writing of the US Constitution did not use the phrase, so Bob has to assume that John Jay read Vattel in the French and that he got his concept of natural born citizen from Vattel’s words, naturels and indegenés, who were born in the country to citizen parents.
The meaning of Vattel is essential to support Bob’s thesis, but he essentially exercises selective reading of dictionaries and relies on a couple of French-speaking friends for his understanding of the text. (One of the reasons Bob goes wrong is that the primary goal of the exercise is to deny the authority of his Civics teacher and any other authority–who may be part of the conspiracy or afraid to speak the truth.) Two professional translators, however, have shown conclusively that what is rendered “parents” in English in the French means blood relatives (possibly mother and father, but not primarily so) and that the plural “parents” is a group plural matching the plural “children.” If John Jay had read Vattel in the French with comprehension, he would not have found Bob’s ideas in it. This destroys Bob’s chain of reasoning.
The third major flaw in Bob’s argument regards the notion of secrecy. I would generally reject any argument which relies on secret evidence. Bob believes that the men who wrote the US Constitution hid the meaning of “natural born citizen” so as not to arouse some faction supporting children of foreign parents for president. As a result the drafters of the Constitution hid for all time what they meant by what they wrote, and the people who actually ratified the Constitution generally didn’t understand the secret meaning. Bob asserts that the Constitution should be interpreted according to its plain language, and he further admits that the people who ratified the Constitution thought natural born citizen meant something different from what Bob thinks. So by Bob’s own criteria, he is proven wrong. I cannot abide that the meaning of any constitution or legislation is to be interpreted according to a secret meaning that the persons who adopted it were unaware of. That flies into a basic founding principle of the United States: the consent of the governed.
The fourth major topic is Bob’s amazing chain of reasoning to infer what John Jay really meant by natural born citizen. Bob asserts a meeting between John Jay and Sir William Scott where Jay influenced Scott to use the phrase “natural born citizen” in an upcoming edition of Vattel’s The Law of Nations that Scott was preparing, that that Scott decided based on an American usage to make the change to the English translation of Vattel in order to match the American model, rather than the European model that Vattel was writing about. Therefore the appearance of “natural born citizen” in an English translation of Vattel proves how Jay had defined it. But if Jay defined and owned the term, what possible relevance could it have to an edition of Vattel? There are several missing smoking guns here:
5. There is no evidence that Jay and Scott ever met (although it is certainly plausible)
6. There is no evidence that Jay and Scott discussed Vattel or the meaning of natural born citizen.
7. There is no evidence Jay held the view that Bob believes Jay transmitted to Scott.
8. There is no evidence that Scott was translator or editor of the 1789 edition of The Law of Nations, nor the translator of any other work.
In fact, commenters here discovered that a man named John Carey edited, without attribution, some edition of The Law of Nations, making a strong case that Carey was the editor of the unattributed 1789 edition, not Scott. A moment’s reflection shows the problem with Bob’s theory. Sir William Scott was a noted jurist and if he had edited Vattel, the publisher would have certainly advertised that fact to enhance sales of the book. On the other hand, John Carey was unknown at the time and would add no gravitas to the edition. Since Carey was an unknown at the time, the chances that he met John Jay are much smaller. Again the chain breaks.
Other absent smoking guns:
9. No historical statement that “natural born citizen” and “natural born subject” were regarded as fundamentally different.
10. No historical statement that the terms “natural born citizen” and “native-born” citizen were considered distinct.
11. No historical statement that anyone considered “natural born citizen” to mean anything else than “citizen from birth.”
12. No historical statement that anyone considered “natural born citizen” to mean anything other than a citizen who was not naturalized.
13. No historical statement that “natural born citizen” was a “higher form” of citizenship (a phrase Bob uses often).
Operating on a set of principles that allow him to reject authority, invoke secrecy to explain the obvious lack of evidence, ignore the usual definitions of words, beg the question and to excuse away the evidence against him, Bob Gard proves how bad confirmation bias can blind one to the obvious, and why expertise and authority matter. Bob’s tissue of conspiracy theory falls apart under the gentle shower of objective inspection without even the need to invoke the evidence against his conclusion.
Bob previously emailed me his concluding remarks, which I have posted following. These were written before publication of the current item, and if Bob would like to amend his closing remarks, he is welcome to do so.
The preceding are not a response to Bob’s comments which follow, but a summary of the discussion so far. In what follows, Bob suggests that I have withheld publication of the preceding, but I just wrote it this morning.
Bob is concerned that no one addresses his claims of the importance of Vattel in the foundations of American government. (And I would more severely criticize his failure to acknowledge the importance of English Common Law in the foundations of American government.) I don’t deny the importance of Vattel, but saying that Vattel is important is not the same as saying that Americans slavishly followed his lead in everything, because Vattel was often rejected, for example in his believe in a mandatory state religion and his abhorrence of slavery. The framers simply do not cite Vattel on the question of acquisition of citizenship, nor does Vattel come up more than once in the records of the Federal Convention. Vattel was a writer on international law, and the law of citizenship varies from country to country.
Bob castigates folks on this site for being anonymous. My name is available here on the site on the About Dr. Conspiracy page, and one of Bob’s main antagonists, Lupin, has even had his Wikipedia page posted. Other commenters are anonymous, but they don’t rely on claims of their own authority, but on the evidence they gathered.
All good things must come to an end. I thank Dr. Conspiracy for allowing me to come onto his site and faithfully reproducing my replies for the most part. A few replies he left out like my response to his objection about Rawle on Feb. 23. He left out his response of Feb. 19 to which I responded on the 20th. By doing this, he made it look like my introductory sentences—“Now we’re talking. This was a wonderful response. . . very objective”— were in intended to describe his Feb. 18 message, which they weren’t.
Except for a few conservative sites, my treatment on his site was better with respect to the faithful reproduction of my messages than what I received on the majority of conservative sites, which demonstrated censorship of free speech. I know he would not agree since he never allowed me to conclude anything of that ilk from such circumstantial evidence in my eBook. Using Dr. Conspiracy’s model, my comments being removed from such sites do not prove that those sites censored material. Such an induction would be illegitimate.
The Obama Conspiracies put the Huffington Post to shame with respect to free speech. The only criticism I have is that almost everyone on this site as well as on many of the conservative sites use pseudonyms to cast aspersions and epithets behind a shield of anonymity. In my mind, that practice is dishonorable. However, pseudonyms have a long history in politics as well as gutter talk.
This will be my final communication, in part due to Dr. Conspiracy’s latest response, which he has not published yet, and, in part, because I have accomplished my mission. Every one seemed to think my mission was to sell eBooks. Of course you did because you thought me to be an idiot. My mission was to find out what you all had to offer in rejection of my conclusions. You didn’t have much. You relied on rehashing the same arguments time and time again. Dr. Conspiracy rephrased many of them in his second contribution to The Great Debate on February 12. The best adage encapsulating my mission is “Know your friends well, know your enemies better.” Why are you my political enemies? Because you support Presidents, Congressmen and Supreme Courts judges that take away my freedom.
Afterwards you gave me a few more pieces of circumstantial evidence in defense of your belief that natural-born citizen equals native-born and that its roots are in English common law. When I responded to your arguments, all of you derided me, slinging deprecatory names and descriptions my way. It seems, however, that your “proof” has been exhausted. There is no point in my continuing the debate.
Dr. Conspiracy, please publish your last response to me so that your contributors can understand this message.
"You violate your own Axiom on every turn. You are biased beyond redemption." Dr. Conspiracy, you cannot understand the plain English in Axiom 6: “Political analysts must apply the same logic to both sides of any political dispute in order to be fair and consistent.” You use inductive logic (logic generalizing to produce a universal claim or principle from observed instances) to explain that presidents only need to be native-born because famous people that didn’t attend the Constitutional Convention mentioned that presidents had to be native-born. I use the same style of logic to explain that the framers put natural-born citizen into the Constitution because they knew that it meant more than native-born. You try to prove your contention with circumstantial evidence. I try to prove my contention with circumstantial evidence. You say that native-born must be the true definition because the Constitution was ratified by many ratifiers who probably figured that natural-born meant native-born without one conclusive proof. I contend natural-born was more than native-born by offering over a thousand pages of evidence that I explain to bolster my conclusion. It is you who violate the axiom. If anyone is biased, it is you. Your followers too.
You don’t state your name and don’t show your transcripts. Nobody flails you. Obama said corps men instead of "coremen" [pronunciation] and claimed he had campaigned through 57 of the 58 states. John Kerry in his capacity as Secretary of State just invented a new country. At least my Cypress was a homonym for Cyprus. Everybody makes mistakes. Kerry is no different. I don’t hear any of your colleagues shouting for his resignation or demanding the impeachment of Obama. I mean, forgetting the composition of the nation one wants to govern is a pretty serious faux pas. And inventing a nation in one’s capacity as Secretary of State is at least as serious as spelling a homonym for a country by a person who holds no political office. The fact that you will excuse the blunders of your liberal heroes and not your conservative enemies violates Axiom 6.
You are being hypocritical. No one on your site has proven his authority or expertise. NO ONE. You hide behind anonymity. I don’t. When I call you hypocritical, I don’t know whom I’m addressing. Not a single one of you is ashamed of his anonymity. Yours is a club of one anonymous contributor bolstering the ego of another, which brings me to a new axiom: If respondents used their true identities, civility and import would be greatly enhanced.
You haven’t tried to disprove what I exposed about Madison’s quote and you completely ignored my logical argument in favor of "parens citoyens" meaning both parents. You are the one guilty of willful ignorance and disrespect for facts as well as disrespect for anyone who disagrees with you.
No one or you offered any real argument against the existence of voluntary expatriation. Trying to argue that expatriation wasn’t a part of American citizenship before 1868 is like arguing that water runs uphill, yet apparently a lawyer tried to argue that. No wonder. It is similar to the time that I wrote a rebuttal to a city engineer that invested in the same kind of reasoning when he wrote in a letter without realizing it that he was depending on just that truth to justify his rationale. My demands were met because I threatened to publish his letter in a local newspaper.
"Further your translation of Vattel is totally wrong, as Publius and his dictionaries have shown, not to mention the two professional translators that you brushed off." Neither Publius nor your “two” translators have offered a logical analysis that makes their definition correct other than their anonymous expertise. I only remember one translator. As far as I know, he didn’t give the editions of Vattel he supposedly translated and he didn’t prove that he was a professional. I would still like to buy his editions. I bought many and none “translated” Vattel’s French in the way Publius and your professional claim. But it isn’t the translation that these two attack. It is the meaning. They want the meaning to be “either parent,” which would have introduced a maelstrom in the 18th-century concept of jus sanguinis. Their translation is right because they say so and you say so, the same kind of thing you charge me with. Dictionaries don’t mean a thing in this analysis. If you can’t get that through your head, you have no chance to understand natural-born citizen. If you boil this debate down to anything, this is wherein lies the main stumbling block. Publius and you are willfully ignorant to the unarguable fact that Vattel’s definition has never made its way into a dictionary, either as both parents or either parent. You think you can define Vattel’s definition by looking up native and indigene and rely on their dictionary meanings. You unequivocally can’t. Talk about relying on references that suit you.
You haven’t answered any of my questions about Rawle and Madison.
You’ve completely dismissed my questions about Vattel’s importance in colonial America.
I won’t call Publius and you cranks because you know exactly what you are doing. You refuse to acknowledge any reasonable argument because it would begin to undermine the power of liberalism, which has distorted republicanism, in its form as a legal doctrine for government, beyond recognition. Like your President, you rely on derision for your logic.
None of your followers have mentioned a word about my pronouncement that Jefferson most probably relied on Vattel to write the Declaration of Independence. There are foreign countries that recognize it. Americans wish to fool themselves with the belief that Jefferson wrote this great document solely from the genius of his mind. And you want me to respect leftists that brush aside Vattel.
I do not respect people that take away my freedom simply because they occupy the presidency, the Congress and the Supreme Court. Nor do I respect their form of debate, as portrayed perfectly by the unmitigated display of disrespectful behavior by Rep. Keith Ellison (D-Minn.) on the Sean Hannity show last night. I will not bow to Keith Ellison’s intellect as you ask me to do in the following admonishment.
“Normal people recognize authority because certain people have more training, are closer to sources, are more qualified, and have earned the respect of others” is the lecture of people trying to keep their power without constantly proving they are worthy of it. Obama appointed two Supreme Court justices that can’t read the plain English in the Constitution. I can. Anyone can if disposed to push aside political agendas. From Marbury v. Madison of John Marshall fame to now, many judges have chosen not to. Wikipedia noted that Jefferson “lamented that allowing the Constitution to mean whatever the Court says it means would make the Constitution ‘a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.’”
I have seen many countries where citizens have bowed to authority and have gotten tyrannical governments. If your lecture had been followed by our forefathers, we wouldn’t be free today. As a member of a sovereign people, I will exercise my right to ignore people who are self-adulating in the belief that they are better than other people.
Your use of bats__t stoops to the level of the person that called me a lying sack of s__t. Since you have chosen to alight at that level, I see no point in continuing the debate. Most of the points you bring up are points that I had planned to cover in Part II anyway, such as Rawle, Kent and others as sources. I won’t be interested in extensively clarifying my position on these sources until I write Part II.
“ . . .I doubt there’s another human being on the planet that agrees with that bizarre viewpoint.” You know that many people share my view. I am the first to research the topic enough to prove it at any level of proof. Few people that agree with me share my readiness to bear the puerile deprecation that they would receive on sites like this. They also do not want to read extensively; they want a simple one-paragraph solution like your followers. The real world doesn’t offer many of those. Liberalism has won the education battle because conservatism has tired of the epithets and lost its way. There is more education in my eBook about the Constitution than most people can stand.
After negotiating the Jay Treaty, John Jay’s reputation suffered greatly at the hands of the same kind of people that predominate your web site:
“As yet the contents of the treaty, as propriety required before its ratification, had been kept secret; but the 29th of June a senator from Virginia, regardless both of the rules of the Senate and of official decorum, sent a copy of it to a democratic printer in Philadelphia, who published it on the 2d of July [Leaks then, leaks now]. . . . On the 4th a great mob assembled and paraded the streets with an effigy of Mr. Jay bearing a pair of scales, one labelled ‘American Liberty and Independence,’ and the other, which was in extreme depression, ‘British Gold;’ while from the mouth of the figure proceeded the words, ‘Come up to my price, and I will sell you my Country.’ The effigy was afterward publicly committed to flames. . . .”
“Even before its contents were known, letters, signed ‘Franklin,’ appeared abusing the treaty; and in Philadelphia an effigy of Jay was placed in the pillory, and finally taken down, guillotined, the clothes fired, and the body blown up. It was clear, then, that it was not this particular treaty, but any treaty at all with Great Britain, that excited the wrath of the Republicans.”
“Jefferson did his part to incite more mobs by publicly calling Jay ‘a rogue of a pilot,’ who had run the vessel of state into an enemy’s port. . . . Thomas Jefferson nurtured more violent protests by pronouncing the Jay Treaty ‘execrable,’ ’an infamous Act,’ and ‘stamped with avarice and corruption.’ Charleston officially declared Jay worthy of the recently invented guillotine.” On your web site, at least none of you said “off with his (Bob’s) head.” I should consider myself lucky.
“James Savage, once president of the Massachusetts Historical Society, told his grandson that he remembered seeing those words chalked in large white letters around the inclosure of Mr. Robert Treat Paine:—‘Damn John Jay! Damn every one that won’t damn John Jay!! Damn every one that won’t put lights in his windows and sit up all night damning John Jay!!!’”
Perhaps one of the major reasons that Washington declined a third term was the shift in rhetoric concerning his reputation: For the first time, George Washington lost his shield from the press. “He had heretofore been treated by them with respect: henceforth no distinction was made between him and his advisers, and no public man was more vilely abused during the remainder of his administration.” I consider this corroborative evidence of the close relationship between Washington and Jay. Jay literally sacrificed any pretensions for a future presidency by doing Washington’s bidding and Washington gave up any intention he might have harbored for a third term by defending the Jay Treaty. At the very least, he endured his reputation being sulled before his very eyes. We have had presidents since who have been quite willing to throw their underlings under the bus to save their reputations. Dr. Conspiracy, you have never shown this degree of trust and loyalty to exist between William Rawle and Washington. In 1791 President Washington appointed Rawle the United States district attorney for Pennsylvania. Washington had granted his friend John Jay the first pick of any office under his administration that he wanted. How can you intimate that Rawle maintained a friendship with Washington similar to Jay’s?
Throughout the storm of vituperation, Jay himself remained calm and philosophical. “‘As to my negotiation and the treaty,’ he wrote to Judge Cushing, ‘I left this country well convinced that it would not receive anti-Federal approbation; besides, I had read the history of Greece, and was apprised of the politics and proceedings of more recent date’. . . . ‘Calumny’, he said again, ‘is seldom durable, it will in time yield to truth.’”
My parting comment must be: I exalt the freedom of speech on this web site; I wish it were coupled to voluntary identity to enhance the civility and import of the comments.
Sincerely,
Bob Gard
Additional comment from Bob:
I decided to go back to Kibitzer 3 since I had no time to follow the last couple days of comments.
I saw that Lupin [Right, I called you Lupine, so I am guilty of horrible things, unlike our Vice-President who gives speeches in one state thinking he is in another) had identified himself as Brian M. Stableford. He has an impressive resume but I don’t think that editing a “pioneering venture on the exploration of ‘inner space’ by renowned Swiss philosopher Emerich de Vattel” makes him an expert on Vattel’s The Laws of Nations. It makes him an editor and probably a good French-to-English translator, but he is still wrong on Vattel’s definition of native and indigenes. Nonetheless, I now know why he would make such a translation.
Brian’s book is listed on Amazon as Nemoville (French Science Fiction) [Kindle Edition] Claude Manceau (Author), Alfred Bonnardot (Author), Pierre Mille (Author), Emerich de Vattel (Author), Emma-Adele Lacerte (Author), Jose Moselli (Author), G. Bethuys (Author), Alphonse Brown (Author), Brian Stableford (Editor) Emerich Vattel (Author), Emma-Adele Lacerte (Author), Brian Stableford (Editor)
I noticed that I was attacked on my dictionary references: Parens. Le pere ou la mere (Jean Nicot: Le Thresor de la langue francoyse, 1606) [I don’t supply footnotes in my responses to Dr. Conspiracy. In my eBook, I do.] Here is the footnote:
[1]http://artflx.uchicago.edu/cgi-bin/dicos/pubdico1look.pl?strippedhw=pere
If you look up this reference, this is what you will find:
Jean Nicot: Le Thresor de la langue francoyse (1606)
pere
Pere, Genitor, Pater.
Le pere ou la mere, Parens. . . .
I believe the person giving me a hard time showed links to parents, not paarens.
Please seek out the University of Chicago for your derision. There’s that Chicagoan influence again. I apologize for not realizing that I could not depend on that university’s research. Actually I still do.
All that stuff on axioms! What a waste of time. I gave the reasons for my selection of the term axiom. Axioms are used in my way elsewhere. I didn’t say mine were mathematical except for the first arithmetic axiom. I did not say that my use of set theory was axiomatic. Your distortion, people.
I am going to send this message. I will go over some other responses left in that thread and may reply briefly. I see that not one of you realizes I cannot spend all my waking time on responding or even reading every reply.
Another comment from Bob:
Kibitzer 4. The comment by Welsh Dragon was outstanding–February 26, 2013 at 4:29 pm. That was the kind of stuff I was hoping to get from this site. Were it only the kind of comment that served as the norm! It convinces me I will have to go back and look into all the Washington quotes more deeply. The footnotes in my eBook identify most of the Washington quotes as coming from the source cited by Welsh Dragon. I had decertified the quote regarding the 1777 Jefferson resolution, which made me somewhat uncomfortable with the rest. I investigated a few outside this source. I didn’t insert the entire citation regarding Spotswood because I had to reduce some contexts. I was already past page 700. I am constantly criticized equally for too many pages and for not including more. I didn’t think the rest of the Spotswood material was theme-changing. The reference showed Washington’s wish not to have his preference publicly known whether or not he was talking about four men specifically. He preferred secrecy so as not to sow dissension. If he believed it then, why not later? I forget who questioned the fact that Washington had not mentioned natural-born citizens, but why would he when this term was rare. It’s first authenticated use in Congress was in November 1777 in it is expanded form of natural born free Citizens.
I sent the following email to Publius for his book review:
Thanks for the review. It was nicer than I thought it would be. Thanks for the two stars. They were a surprise. I know you didn’t read the entire eBook. Why didn’t you confess that? Why didn’t the others. All of you started out on a false premise of having read the eBook.
I think some of the public may understand that the three negative responses were entirely political and that none of you really read the eBook. In fact, the negative rigor with which you reviewed the book was tell-tale. Thank you.